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The Department of Internal Affairs Te Tari Taiwhenua

IN-CONFIDENCE of 8

Local elections are run under the principles of the LEA and are an essential service during the COVID-19 lockdown

7. While the administration of local by-elections is continuing during the lockdown as an essential service, those involved in by-elections must:

• minimise, or eliminate if possible, physical interactions among staff;

• ensure appropriate health, hygiene and safety measures are in place;

• restrict activity to only what is essential during the Alert Level Four period; and

• act in accordance with the Government’s COVID-19 guidance for essential businesses.

8. Electoral officers have been advised that candidates must not undertake any physical campaigning during the lockdown. Provisions for candidates and voters to return nomination or voting documents in person can be made by electoral officers if this can be done in accordance with the Government’s COVID-19 guidance.

Challenges for managing the impacts of restrictions on public movement

We have concerns about allowing the by-elections to proceed during the lockdown and any subsequent periods of significant movement restrictions

9. Despite by-elections being an essential service, we consider that allowing the by-elections to proceed during the lockdown risks seriously undermining the principles of the LEA and the integrity of the elections.

10. Examples of some of the difficulties the restrictions on public movement create for by-elections are outlined in Appendix B as well as statistical information about the Motueka Ward demographics as a case study. We consider the impacts of movement restrictions mean that some New Zealanders will not have a reasonable opportunity to participate in the by-elections as candidates, nominators, or voters and this creates an inequity issue.

11. At this stage we do not know what circumstances will prevail after the lockdown is lifted but it seems likely there may be a period where all or parts of New Zealand stay in Alert Level Three at least. Even with a reduced alert level, the restrictions of Alert Level Three are likely to make participation in local by-elections difficult, and this impact is likely to be uneven across different groups within the community.

Electoral officers have some options to manage or mitigate the impacts of restrictions on movement

12. We have been in discussions with the local electoral officers to understand how they are managing by-election challenges during the lockdown. They have provided examples of pragmatic steps they are taking to mitigate the impact of lockdown restrictions (see Appendix B).

13. Under the LEA, electoral officers can adjourn the close of voting in exceptional circumstances, where they consider that electors are, or are likely to be, denied a reasonable opportunity to cast a valid vote. The electoral officers for the current by-elections have indicated that they will consider using this mechanism if they see evidence that electors are having difficulty voting, such as lower than expected turnout rates.

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14. However, this adjournment mechanism has significant limitations:

14.1 it cannot be used to extend the nomination period;

14.2 departmental legal advice indicates it cannot be used until after voting papers are sent to voters;

14.3 the electoral officer can only defer the close of voting by up to 14 days (extendable) which does not provide transparency or certainty for candidates and electors if multiple extensions are needed; and

14.4 a significantly extended voting period runs the risk that electors lose interest or lose their voting papers, with the risk of eroding the integrity of the election result.

15. The electoral officers’ adjournment mechanism seems to be well suited for responding to localised disasters where a return to normal services or an alternative means of voting could usually be put in place within 14 days. This is not the case in the present situation, particularly given the uncertainty of what next steps will be in place after the lockdown.

Options for central government intervention

Central government intervention in local electoral processes is a significant step which should be carefully considered

16. Local authorities are responsible for conducting local elections and central government intervention should only happen in extraordinary circumstances where existing contingency mechanisms available to local authorities and electoral officers are not adequate.

17. On balance, we think a carefully considered intervention is necessary to maintain public confidence and trust in the integrity of electoral processes and outcomes. Central government intervention would provide more certainty, transparency and consistency about how by-elections are conducted during periods of restricted public movement.

18. If the legislative mechanisms are available, we recommend:

18.1 adjustments to key dates (closing of the roll, nomination day and polling day) for by-elections already in progress to allow an appropriate amount of time for election processes to be completed after restrictions on movement are lifted; and

18.2 providing for a temporary mechanism, such as an Order-in-Council, which would enable adjustments to the timing for any upcoming by-elections1.

The proposed omnibus Bill provides a possible vehicle for legislative change

19. The Parliamentary Counsel Office has collated, from departments, a list of possible urgent legislative changes which could be included in the Bill as part of the COVID-19 response. COVID-19 Ministers are expected to confirm the process for this omnibus bill on 15 April 2020. We expect that policy decisions on any changes to be included in the

1 This could be similar to the existing mechanism under section 73A of the Local Electoral Act 2001 for triennial

elections.

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Bill will need to be confirmed by the Cabinet COVID-19 Committee by 17 April 2020. However, policy decisions on some technical matters may be delegated to responsible Ministers.

20. Currently, we consider this Bill to be the only viable legislative vehicle for these changes. However, the Bill is unlikely to be enacted and take effect before the end of April 2020 which means its ability to support the four by-elections currently underway is limited. Instead, changes made in this way could be used to provide greater certainty and transparency, and mitigate the impacts of movement restrictions, for the Hurunui District Council by-election and any other upcoming by-elections.

21. We seek your agreement to draft a Cabinet policy paper, if it is required, seeking approval for legislative changes to enable LEA timeframes for by-elections to be adjusted by Order-in-Council under extraordinary circumstances. If it is required, we expect the Cabinet policy paper would need to be considered by COVID-19 Ministers next week. However, as the process for the omnibus bill is yet to be finalised, we may identify simpler ways to get this change progressed.

22. We also seek your agreement to discuss the proposed changes with Local Government New Zealand (LGNZ), the Society of Local Government Managers (SOLGM), and the electoral officers and/or local authorities involved in current by-elections, where necessary to inform our advice.

Other options for legislative change mechanism have been discounted at this stage

23. Our preference would be to progress adjustments to the timeframes for by-elections that are already underway through a mechanism that would take effect earlier than the Bill.

24.

25. However, if we are able to identify an opportunity to make changes earlier, such as through an Order-in-Council, this is likely to require a separate Cabinet paper and we will keep you updated. Any changes through Order-in-Council would have to be limited in scope because of the legal tests and additional changes would still need to be progressed through the Bill.

Consultation

26. We have consulted with SOLGM, LGNZ and the four electoral officers involved in the current by-elections to understand the current challenges for delivering by-elections, and the mitigation strategies being deployed. We have encouraged the electoral officers to, where appropriate, take a consistent approach to significant decisions on the conduct of these elections and to share their thinking about whether and when the adjournment mechanism should be used.

S. 9(2)(h)

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Next steps

27. With your agreement, we expect to provide a draft Cabinet paper for your consideration on 15 April 2020. The final Cabinet paper would need to be lodged by 4pm 16 April 2020 for consideration at the 17 April 2020 meeting of the COVID-19 Ministerial Group. These timeframes are tight for an amendment of this size. We are therefore in discussion with officials about whether the 17 April 2020 deadline could be extended for this proposal. We will keep your office up-to-date on progress.

Recommendations

28. We recommend that you:

a) note that the COVID-19 lockdown and the potential for extended periods of restriction of public movement create challenges for the principles of the Local Electoral Act 2001 to be met in current local by-elections;

b) agree that officials will prepare a draft Cabinet paper, for your consideration, seeking policy decisions for a mechanism to adjust key local by-elections timeframes as part of the COVID-19 response, for inclusion in an omnibus bill expected to be progressed at the end of April (subject to COVID-19 Ministers decisions on the process for policy approvals for that Bill);

Yes/No

c) agree that officials can consult with Local Government New Zealand, the Society of Local Government Managers, and the local authorities and electoral officers involved in current by-elections on the nature of the proposed policy decisions; and

Yes/No

d) note that officials will to continue to explore whether urgent changes to the timeframes for current by-elections could be progressed earlier through an existing Order-in-Council mechanism.

Michael Lovett Acting Deputy Chief Executive

Hon Nanaia Mahuta Minister of Local Government

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Appendix A: Timeline for elections during COVID-19 lockdown

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Appendix B: Examples of impacts of the lockdown on by-elections and of mitigations measures

Examples of some of the impacts of restrictions on public movement on by-elections processes or the principles of the Local Electoral Act

• The electoral roll, which is required to be available for inspection at council offices, may not be accessible.

• Candidates are not able to put up signs, drop off flyers, or door knock, so are limited to online campaigning only (one council has received a complaint about this).

• Voters may be less able to learn about the candidates and may be less focused on the by-elections because of the pandemic.

• Some voters may be unable to return their votes given that Post Shops, council offices and libraries are closed, and some localities do not have street-side post boxes.

• It will not be possible for local authorities to offer in-person help to voters who need assistance to cast their vote or request a special vote.

• Voting document production and voting document return—while considered essential services—are likely to draw people out of their self-isolation bubbles and risk exposure to COVID-19.

Case study: Motueka Ward by-election (Tasman District)

• Total of 9,037 electors.

• Approximately 23% of the population in the Ward area is over the age of 65.

• Approximately 25% of the population in the Ward area does not have access to the Internet.

• There are 6 public post boxes in the Motueka Ward.

• In the 2017 Motueka Community Board by-election, voter turn-out was 40.73%.

• In the 2019 triennial election, the Motueka Ward voter turn-out was 53.37%.

Electoral officers’ examples of some of the mitigation measures being used to mitigate the impacts of lockdown restrictions on candidates, nominators and voters, such as:

• Accepting nomination documents submitted electronically (some electoral officers will do this).

• Accepting parts of the nomination documentation received separately from the nominators and the candidates (rather than requiring all documentation and the payment to be submitted together).

• Making the electoral roll available for inspection at a petrol station in Ōtorohanga which is across the road from the council offices.

• Distributing messages to voters recommending that they post their voting papers back when they visit the supermarket (as most supermarkets have post boxes) or allowing papers to be returned through library after-hours slots.

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