Prominent legal expert advises Prime Minister
Mai Chen
Auckland August 15, 2020
If I had to advise the Prime Minister in the next 48 hours about whether to move the current proposed election date of September 19, 2020, then, I would tell her that the options are limited by the Constitution Act and the Electoral Act.
These limits are constitutional safeguards that New Zealand has in place to protect our system of participatory democracy.
Retaining the schedule
If the new confirmed cases of Covid-19 are contained and from just one cluster, she could retain that date.
The Electoral Commission is currently prepared to run an election on September 19, 2020 under Alert Level 2 and can even cater for up to 5000 people under Alert Level 3.
Candidate nominations must be received by at least 20 days before the election day. Hence, it would be tight if the general election is to be held on September 19, but it is still possible.
If later events create an “unforeseen or unavoidable disruption,” then the Chief Electoral Officer is empowered under the recently amended Electoral Act (11 March 2020) to adjourn the date of polling day. This includes concerns about public health or safety.
Checks and balances
Any delayed election date would then be an independent decision of the Chief Electoral Officer guided by the legal process set out by Parliament. It avoids the constitutionally fraught situation of the Prime Minister moving the date, which would inevitably lead to accusations of a partisan decision for political advantage.
The Chief Electoral Officer has no power to unilaterally change the date of polling day, but can adjourn elections for an initial period of up to three days and, after consulting the Prime Minister and the Leader of the Opposition, one or more subsequent periods of no more than seven days each.
If the Prime Minister wants to choose a later election date, this is possible, but can become constitutionally complicated.
She is limited to October 12, 2020, which is the date on which the current Parliament expires by law (S17(1) Constitution Act).
Amendment implications
Any election date after October 12, 2020 extends a government’s term beyond the period mandated under the law and is understandably a cause for scrutiny as to whether that is necessary and justified by extraordinary circumstances.
Thus, it would require Parliament to be summoned back to amend section 17(1) of the Constitution Act to extend the term of the current parliament.
Such a resolution would have to be carried by 75% of all MPs because section 17(1) is safeguarded by entrenchment.
Together with the method of voting and who is eligible to vote, the term of Parliament is considered to be constitutionally sacrosanct (Electoral Act, s 268).
These safeguards protect our system of participatory democracy, and prevents Prime Ministers and governments keeping themselves in office indefinitely.
Extending the term of Parliament also has other implications. For example, MPs who are retiring or whose bad behaviour have resulted in them not standing again continue to receive their taxpayer-funded salaries for longer.
Covid suspensions mushroom
Note that as of June 2020, 57 countries and five territories have responded to the pandemic by suspending elections – some indefinitely. (International Foundation for Electoral Systems, Legal Considerations when delaying or adapting elections.
Indefinite deferral is highly unlikely to happen in New Zealand, as Labour and National MPs would have to agree to comprise a 75% majority. If they did, they would simply not be re-elected, if New Zealanders’ emphatic rejection of the 1990 Referendum to extend the Parliamentary term from three years to four is a guide.
Two precedents
The First and Second World Wars were the only times when elections were delayed in New Zealand.
The 19th Parliament, elected in 1914, lasted almost five years, after Parliament passed the Parliamentary Elections Postponement Act 1916 because of the First World War.
Parliament passed a law extending its term to four years in 1934, extending the term of the then current Parliament as well, in response to the Depression.
This was later reversed, but the election was also delayed twice during the Second World War, with a Prolongation of Parliament Act passed in each of 1941 and 1942.
IFES Recommendation
The International Foundation for Electoral Systems (IFES) Report says that any measures that derogate political and electoral rights in emergency situations must be necessary, proportional, non-discriminatory, temporary, limited in scope and clearly communicated.
Any postponement to periodic elections should be limited in duration and focus on the minimum time needed to prepare for and ensure safe elections with broad-based political agreement if possible, to ensure the restoration of rights.
General Election imperative
Thus, the advice to the Prime Minister is that she needs to get her preferred date right because after that she and the current government cannot change the date unilaterally.
Our system rightly moves the power to reset back to a new Parliament and the requirement of 75% majority to amend the Constitution Act.
Regardless of pandemics, this should be the case as periodic general elections underpin the legitimacy of governments and ensure that the power to govern is mandated by the will of the governed as evidenced by their votes on polling day.
Mai Chen is Managing Partner of Chen Palmer, Adjunct Professor at the University of Auckland Law School and a Director on the Board of the Bank of New Zealand (BNZ). The above article, which appeared on the website of ‘Business Desk’ today was sent to us by the Author.(Picture from Women and Leadership New Zealand)
