Our most unconventional election

Even if this were a normal election University of Otago constitutional law specialist Andrew Geddis’ book Electoral Law in New Zealand: Practice and Policy would have been well-thumbed by politicians already.

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But this is very much not a normal election, setting new precedents without having actually officially started yet.

After polling day — and the odds are lengthening by the hour that it will actually be September 19 as scheduled — Prof Geddis will probably have to revise several sections of his book and possibly add a chapter or two.

Unlike many other countries, New Zealand does not have a single-document, overarching constitution — despite the ardent desire of the likes of former prime minister Sir Geoffrey Palmer that there should be such.

Instead, we are served by a grab-bag of legislation, documents and — vexingly, at this time — conventions.

Convention — a fancy way of saying "doing things the way we have always done them" — loosely govern much of what politicians do.

Arguably, the most important is the caretaker convention, which sets out that if there is a change of government after an election, the previous occupants of the Treasury benches are there to keep their seats warm, rather than embark on a series of last-minute reforms themselves.

Unlike many conventions, this one is spelled out chapter and verse in the Cabinet Manual — an unusual step taken after the 1984 election, when the outgoing Muldoon government refused to follow a request from the incoming Lange government.

What happens before an election is murkier, though.

The aforementioned Cabinet Manual recommends governments not make major decisions or appointments immediately before elections, on the sensible grounds that the next government might not share its view on such matters.

However, at this point in time, all Prime Minister Jacinda Ardern is doing is making major decisions — and rightly so, too.

It is her job to do so. Pandemics are no respecters of political timelines, and history would judge her harshly if she abdicated public health responsibilities in deference to electoral reasons.

If there was anyone who doubted that this year’s election was going to be fought almost exclusively on the Covid-19 issue, events of the past few days should have shattered that illusion.

All anyone, politicians or otherwise, is talking about is Covid-19, and that will be the case for weeks to come.

National leader Judith Collins, in a bid to secure her own place in Electoral Law in New Zealand, has called for Ms Ardern to postpone the election.

Andrew Geddis
Andrew Geddis

Her argument that it is unfair on other parties because Ms Ardern is on the telly a lot at the moment is a weak one: Ms Collins is getting plenty of airtime too, and much of Ms Ardern’s time in her press conferences is being spent defending possible poor public health policy put in place by her government, which is hardly an electoral asset.

Smaller parties have a much more credible argument here, but rightly or wrongly unequal media coverage is a fact of life for them and the Electoral Act does not specify not getting enough screen time on the 6pm news as a reason to halt voting.

That said, a postponement could — and chances are increasing that it will – happen.

Although everyone knows that while the election is scheduled for September 19, that date is not legally set until the Governor-General issues the election writ — which was scheduled for this weekend.

The writ must be issued a week after the dissolution of Parliament — which was itself postponed earlier this week.

Parliament cannot just continue forever, though.

Section 17 of the Constitution Act says it can remain in session no longer than three years after the return of the writs from the previous election, so we will eventually be voting in some shape or form, ready or not.

Assuming an election writ is issued, for whatever date, the power to change it is out of Ms Ardern’s hands.

Rightly so, too, because imagine the outcry in a hypothetical situation where Labour’s poll numbers tumble over the next few weeks and the Prime Minister postpones the election for what she says are health reasons but which most other people believe is political expediency.

Instead, that responsibility will rest on the shoulders of the Chief Electoral Officer, and in this respect politicians have thought ahead for Alicia Wright and drafted section 195 of the Electoral Act.

Alicia Wright
Alicia Wright

This permits Ms Wright to adjourn the election due to "unforeseen or unavoidable disruption" — and the definition of what that entails helpfully includes an epidemic notice being in place.

However, such an adjournment was only foreseen as a short-term measure — Ms Wright can only put off voting for three days at first instance, and for one or more periods of seven days subsequently.

The chief electoral officer must also consult the Prime Minister, leader of the Opposition, and any person or organisation "able to give information about the scale and duration of the unforeseen or unavoidable disruption" — wouldn’t we all like those details?

Should we all be in lockdown and not look like coming out any time soon, Ms Wright can authorise "alternative voting processes" — New Zealand might end up holding an email election, for example.

There are a good few twists and turns before the country gets to that point though — and if we do, Prof Geddis’ book is likely to have doubled in size.

mike.houlahan@odt.co.nz

 

Comments

It is Law, rather than Convention, that Kiwis are allowed across the border into NZ.

Can that law be unilaterally suspended while an outbreak is being managed?

The current government has shown no qualms about changing laws "under urgency" without due process (cf firearms laws, the lockdown) and without paying proper attention to the letter of the law.

I see no reason why their shabby record should not be repeated in the case of the election.

 

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