Parliament's 2014 election review: the goodish, the so-so, and the ugly

The parliamentary review of the 2014 election has just been reported. What treats do our MPs have in store for the 2017 campaign and beyond?

In the aftermath of every general election, Parliament's Justice and Electoral Committee holds an inquiry to review how the process went and identify matters that could be improved. There's a pdf of my submission to the Committee's inquiry into the 2014 election here, if you want to check my biases before reading on.

Last week the Committee issued its report on that event, which contained a bunch of recommendations (and decisions to not make recommendations) for legislative change before the 2017 campaign kicks off. As with any document created by a Committee, it has its good bits, its not so good bits and its bits that don't really seem to make much sense at all. The following is not a full summary of the 32 pages of analysis and 28 recommendations for change (plus decisions not to make recommendations), but rather my take on its highlights and low points.


The Goodish

The Committee started where recent Justice and Electoral Committee inquiry reports always start - lamenting the continued decline in voter participation. Sure, the 2014 turnout was up a small tick from 2011 ... but at 72.1% of those eligible to enroll it still was the second lowest since universal suffrage was brought in in 1893. In particular, the voting rate of younger electors is dire - less than 65% of eligible 25-29 year-olds cast ballots (and for those on the Māori roll, the figure is even worse at just over 50%).

[Incidentally, if you want to understand why the policies offered and pursued by New Zealand's political parties look the way they do, the graph of turnout-by-age-group on page 13 of the Committee's report will take you a long way toward doing so ... but that's a topic for another post!]

The Committee was united in thinking this declining turnout, especially amongst younger voters, is a real problem. It mirrored previous Committee reports in saying so. So what to do about it?

Well, first of all the Committee was pleased to see that the Electoral Commission is trying to turn things around with some initiatives to interest younger voters in the process and engage them in doing so (because the research shows that the earlier people start voting, the more likely they are to keep doing so throughout their lives). Beyond this, the Committee also thought that schools may have a place in teaching people why voting matters:

We recommend that the Government explore the further development and coordination of ongoing, independent, civics education.

The concerned, middle-aged, legal academic parent in me responded to this with a: "Hells yeah! Those ignorant young people really ought to learn more about how New Zealand is run!". But I also can't help rolling my eyes a bit and thinking: "Civics education - the answer to every problem we otherwise don't know how to fix". Because it's what the panel that examined NZ's constitution recommended back in 2013 after throwing up its hands in horror at New Zealanders' apparent lack of interest in our constitutional arrangements.

And really - is there any evidence that being taught at school that something is "very important" and "matters lots" makes people value it more, or want to engage in it? I'm part of the generations that had Shakespeare crammed down our throats every year in compulsory English classes, yet I doubt even ... I don't know ... 5% of us went to a production of one his plays after we left school.

Nevertheless, compulsory civics classes for the youth seems to be the only solution going. Because the majority of the Committee weren't having a bar of any more radical proposals for combating the decline in voting, such as lowering voting age to 16 ("a major change to the electoral system, requiring broad public consultation and a high level of political consensus") or making voting compulsory ("if such a move were contemplated, the public must be consulted and a high level of political consensus achieved before any such change is implemented").

And as for changing how we vote to meet the expectations of those who are growing up in a digital environment, that ain't happening any time soon:

We consider that, in comparable international jurisdictions, online voting has not necessarily increased voter turnout. Although we watch the progress of online voting in these jurisdictions with interest, we do not consider online voting to be a priority for the 2017 general election in light of other, more pressing concerns outlined in this report.

Note also that the pilot test of online voting in this year's local body elections has been canned, meaning we won't have even a practice run at it until 2019 at earliest - and no full roll-out for local body elections before 2022. I suspect that MPs won't be comfortable setting it loose on parliamentary elections until they've seen it working without a hitch at the local level ... meaning that it could well be another decade before our smartphones or tablets or neural implants begin to replace pen and paper ballots at the local school hall.

While getting people to cast votes seems to have been consigned to the "too hard" basket, the Committee thought that there was an area that the Government might do more on - getting people enrolled to vote (and thus at least eligible to take part in the election). Because here, too, the numbers are starting to slip slightly. That's something the Committee thought ought to be a priority:

We recommend that the Government make promoting voter enrolment a whole-of-government priority with government agencies working together to facilitate enrolment.

But what about concrete changes to the law to respond to the consequences of a person wanting to participate in the election, but not being on the electoral roll? For as the Labour members of the Committee noted in their minority report:

[The Committee's] report presented an opportunity to make changes that would reduce the number of disenfranchised voters. For instance, a person who arrives at an advance voting place to cast their vote and finds that they are not on the electoral roll will have to fill in an enrolment form and complete a special vote form, before they can receive a ballot paper. If there are any errors between these two forms, they risk having their vote disallowed. Equally, someone who believes they are on the roll and simply fills in a special declaration form, will have their vote disallowed if it is found that they were incorrect and had not enrolled.

This actually is a real problem, with some 27,500 votes thrown out because of it in 2014. It also is a problem that affects some voting groups (Māori and Pacifica people in particular) much more than others. And it is something that could be fixed reasonably easily, as the Electoral Commission advised the Committee:

With both enrolment and voting now being delivered by a single agency and because both forms require similar details from the elector, the [Electoral Commission] suggests legislative change that would enable a special vote declaration form to be treated as an application to enrol or update details. This would also serve to streamline the enrolment and voting process during the advance voting period.

Surely a no-brainer, then? A comparatively simple way to help save the votes of thousands of New Zealanders who have taken the time and effort to visit a polling place. Who could object?

Well, here's what the Committee's report says:

A minority of us support the proposal that if the special vote is cast during the advanced voting period then the vote would count for that election, and if the special vote were cast on election day, the special vote declaration form would be treated as an application to enrol or update details for the next election.

Note that phrase, "a minority of us". Because the majority of the Committee (which in this case means the Government's members) apparently didn't support the proposal, meaning that no recommendation was made to adopt it. Just why this was the case didn't then get explained - it is passed over in silence.

At which point you may be wondering, "how is any of this even 'goodish'?" Well, it isn't really, but what is good about the Committee's report is where it chose not to go on these topics. When considering whether tighter controls should be imposed on electors when they cast ballots, the Committee had this to say:

We note that submitters regularly raise issues of voter identification and voter fraud. Because there is no evidence of widespread fraud or personation, we do not consider it necessary to introduce additional identification requirements when voting. We also note that requiring photographic identification from voters might result in some voters being turned away from voting, impose additional costs on voters, and ultimately further reduce turnout.

This is good because the use of voter ID requirements to combat putative concerns about "voter fraud", but really to try and drive down participation amongst particular voting groups, has bedeviled overseas jurisdictions. So it is pleasing to note the Committee unanimously dismissing claims that voter fraud is even a possible issue in New Zealand - "The number of dual votes is very low, between 0.002 and 0.004 percent of registered voters" - and instead emphasising the overriding importance of keeping easy access to the ballot.

By the same token, the Committee also rejected calls to close off the voting rolls (stop people being able to enroll) at an earlier point in time. It instead thought the status quo should continue, whereby people can enroll (and thereafter cast a vote) right up until election day itself (but, note, not on election day). Which is at least goodish, given where the Committee's recommendations on these matters could have gone instead.

There then are a couple of Committee recommendations that are unalloyed positives. The first relates to the way in which "election programmes" are defined in the Broadcasting Act 1989. Because if a programme falls under this definition, it cannot be broadcast (i.e. played on TV or radio) except in certain very limited circumstances, with a potential fine of up to $100,000 applying to those who do so. As Jono and Ben discovered during the run-up to the 2014 election when they invited Winston Peters to take part in a skit on their show, only to be reported to the Police by the Electoral Commission for broadcasting an election programme. 

It seems pretty silly that a comedy show should be, in effect, prohibited from having MPs appear on it because doing so may "appear to encourage or persuade voters to vote for" that MP. And what about overtly satirical comments on our elected representatives, such as Darren Watson's Planet Key song? Sure, a High Court judge managed to fit his message into one of the existing legislative exemptions, but shouldn't the law make it absolutely, totally clear that it (and others like it) are permitted? I mean, we are allowed to make fun of politicians on the TV and radio, aren't we?

The Committee quite rightly thought so:

We recommend that the Government consider providing clarification or exemptions to the restrictions on broadcasting election programmes to address satirical, humorous, and creative programmes.

Which is an unalloyed good. As is a last recommendation from the Committee regarding the relationship between the Māori and General rolls.

When people of Māori descent enroll to vote at present, they may choose whether to go on the Māori or General roll. Once they've done so, they then may choose every 5 years (during the "Māori Electoral Option period") whether to stick with that original decision or change from one roll to the other. But they can only do so every 5 years - in the interim, they remain on one roll or the other.

That can be a problem in a triennial electoral cycle - a Māori voter's desire to participate in one or another electorate contest can change from one election to another, but the choice made during any given Māori Electoral Option period lasts for two elections (at least). Consequently, the Committee said the following:

We recommend that the Government enable electors of Māori descent to change roll type once each electoral cycle with the Māori Electoral Option (MEO) period taking place every three years.

There's two points about this. First, it's a good move in itself. Second, note where we're at now in respect of the Māori seats. A decade after Don Brash's Orewa speech and National aggressively promoting a policy of unilaterally disestablishing them, the Committee is unanimous in saying it should be made even easier for Māori to decide which roll they wish to be on.

Ka pai.


The Ugly

There are a couple of aspects of the Committee's report that have me shaking my head a bit. The first relates to the anomaly that sees a complete election day ban on "exhibit[ing] in or in view of any public place, or publish[ing], or distribut[ing], or broadcast[ing]" things that may influence voters, whilst allowing open slather on campaigning throughout the advance voting period. A lot of submissions thought that this was silly and made a range of suggestions about how to remedy it. My own advice was to adopt the Australian approach of doing away with election day campaign controls altogether and instead have a "buffer zone" around polling places to stop voters being harassed right up to the door.

However, rather than follow my completely sensible and obviously correct path, the Committee has forged its own. It doesn't say anything about lifting the existing rules on election day campaigning, instead saying this:

We recommend that the Government prohibit campaigning and the display of campaign material within, and in the immediate vicinity of, advance voting places

So it wants electioneering to be even more controlled than it presently is. What will be interesting is to see just how widely the "immediate vicinity" of advance voting places is drawn - because it could cause problems in places like Otago University's campus where the advance voting booth is reasonably close to the Main Common Room where politicians, etc regularly visit during the campaign period. So we'll have to watch and see.

The other aspect of this issue that the Committee's approach leaves untouched is the bite that the ban on election day campaigning puts on social media use. Because, according to the Electoral Commission, sending a text or posting a facebook or Instagram update or the like on election day that "advis[es] or [is] intended or likely to influence any elector as to the candidate or party for whom the elector should or should not vote" is an offence punishable by up to a $20,000 fine. What says the Committee about this?

There is no simple solution to these issues, and, on balance, we consider that lifting the restrictions on [social media] statements on election day could be exploited. We consider that the status quo restrictions should remain but encourage a proportionate approach to infractions and the provision of further information and guidance on complying with the law.

So it seems that the Committee wants to leave this bit of our electoral law in the same state as our criminalisation of cannabis. Everyone knows it just doesn't work ... but we still make it illegal to have it/do it and just hope that the Police/Electoral Commission will ignore the little guys breaking the law and only chase after the big ones. Which is not a great state for the law to be in, I would have thunk.

Also of note, before we leave this matter, is that not all of the Committee's recommendations were that speech should be restrained/participants should be inconvenienced. There was one particular group that the Committee was very keen to see helped out:

We recommend that the Government consider extending the current exemption from electioneering on election day for party headquarters signage to any members’ fixed parliamentary signage on electorate offices

So, MPs (or, rather, MPs' staff) are to be saved from the inconvenience of having to cover over the signs on their electorate offices on election day ... but everyone else must suffer in silence. Nice.

Right, I've gone on long enough, so I'll try and finish on a high note of dudgeon. The Committee in its report touched on the issue of prisoner voting - possibly because I made the recent declaration of inconsistency issued by the High Court a central part of my submission (or so I like to think). Recall what I said that declaration said:

it ... mark[s] the judiciary's formal legal finding that this law (while still the one they have to follow) is BAD LAW. Parliament has done something that a properly functioning legislature simply ought not to do - taken away peoples' rights without having a good reason for doing so. And the High Court is looking them right in the eye and saying so.

I'd have thought such a finding would trigger some earnest parliamentary soul searching and a determined effort to meet the concerns expressed by the Court with some justificatory reasoning. You know, something like "we hear what you are saying, but these are the reasons that we think back up having the law in place". That doesn't seem like an unreasonable expectation.

But apparently it is, because the Committee's response consisted of this:

Some of us consider that voting rights should be reinstated for prisoners serving a custodial sentence of three years or less, as was the case previously. We also note the recent High Court declaration that current prisoner voting restrictions are inconsistent with the New Zealand Bill of Rights Act 1990. Some of us also argue that the prohibition on prisoner voting hinders rehabilitation and disproportionately affects Māori. Having considered this issue, the majority of the committee recommends that the status quo should be maintained.

The majority of the Committee has "considered this issue" ... and won't do anything about it. Nor will it tell us just why it won't do anything. That's great. I feel reassured now. I can just let the matter go with a clear and easy mind.

It's almost enough to make you think that both Geoffrey Palmer and David Farrar are right ... which isn't a sentence that gets written very often at all.