Chapter 6: Democratic rights
Te tika ki te whai i te whakatau o te nuinga

1. Introduction — Timatatanga

What are democratic rights?

Democratic rights include electoral rights, the right to take part (directly or indirectly) in government, and the right to equal access to the public service. There is an associated duty of responsible citizenship, being a willingness to play one’s part in public affairs and to respect the rights and freedoms of others. Taken together, these rights ensure the ability to participate in public and political life.

2. International context — Ki ngā kaupapa o te ao

International human rights standards[1]

Article 25 of the International Covenant on Civil and Political Rights (ICCPR) provides for the right of all citizens to take part in the conduct of public affairs, directly or through freely chosen representatives; the right to have access, on general terms of equality, to public service; and, in particular, the right for all ‘to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors’.

Unlike the other rights in the ICCPR, Article 25 confers rights only on citizens, not on all people.

Both the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR) state that all peoples (traditionally a term referring to nation states) have the right to self-determination, which includes the right to freely determine their political status.

International human rights standards recognise that democratic rights:

• require the protection of a range of other rights and freedoms, including the right to justice, freedom of expression, the right to peaceful assembly and freedom of association contained in the ICCPR, and rights relating to health, social security and education in the ICESCR
• must be enjoyed without discrimination. This is stated in the ICCPR as well as the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Elimination of Racial Discrimination (CERD). Both CEDAW and CERD specifically provide that the State should take steps to ensure the equal representation and participation of women and of all ethnic and racial groups in political processes and institutions (CEDAW, Article 7 & CERD, Article 5c).

Interdependence between democracy and human rights

International recognition of the interdependence of democracy and human rights has produced a useful framework for assessing the extent to which democratic rights are respected in both law and practice (Beetham, 2002; Gutto, 2002; IDEA, 2002). According to this framework, the two key principles of democracy are that people should:

• have the right to a controlling influence over public decisions and decision-makers. This is the principle of popular control
• be treated with equal respect and as of equal worth in the context of such decisions. This is the principle of political equality (Beetham, 2002).

The three main conditions for realising popular control and political equality are:

• a framework of guaranteed citizens’ rights (including freedoms of expression, assembly and association, as well as economic, social and cultural rights)
• a system of representative and accountable political institutions subject to popular authorisation
• an active civil society (people working together who can channel popular opinion and engage with government) (Beetham, 2002).

3. The New Zealand context — Ki ngā kaupapa o Aotearoa

The New Zealand constitutional framework

New Zealand, unlike many other countries, has no single constitutional instrument. Instead, the constitution is to be found in a number of statutes, including the Constitution Act 1986, the Electoral Act 1993, the New Zealand Bill of Rights Act 1990 (BoRA), the Treaty of Waitangi, decisions of the courts, and constitutional conventions. The essential business of government is distributed between the legal system, the executive (government ministers and the public service), and Parliament, each of which provides checks and balances on the others.

Many constitutional conventions (such as the collective responsibility of Cabinet Ministers) have no formal legislative base, but are reflected in documents such as the Cabinet Manual. Similarly, Parliamentary practices are contained in Parliamentary Standing Orders.

Another ingredient in the constitutional framework is the public service. The public service is made up of 36 government departments and ministries. Under the State Sector Act 1981, the State Services Commissioner has three roles relating to the performance of the public service: appointing chief executives, reviewing the performance of chief executives, and investigating the performance of the public sector. The public sector is politically neutral (in that appointments are not made on a partisan political basis) and is required to serve the duly elected government of the day.

Treaty of Waitangi

Article 1 of the Treaty of Waitangi provided for the Crown’s right to govern in New Zealand. In terms of democratic rights today, this can be said to be the basis for current government structures in New Zealand, including the predominantly Westminster style of governance.

Article 2 of the Treaty guarantees to Maori ‘full, exclusive and undisturbed possession’ (English version) or ‘te tino rangatiratanga’ (Maori version) of their lands, estates, forests, fisheries and ‘taonga’ (treasured possessions). In terms of democratic rights today, this may be measured by the extent to which Maori are able to govern relevant aspects of Maori life, and the extent to which they are able to participate in Maori structures and organisations, including whanau, marae, hapu, and iwi.

Article 3 of the Treaty affirms the equal citizenship rights of all New Zealanders, including Maori. In terms of democracy today, this may be measured by the extent to which all New Zealanders are proportionately represented in the institutions of the State, and the extent to which New Zealanders participate in political processes such as voting. Article 3 also promises the Queen’s ‘royal protection’ to Maori. A measure of this protection would be the well-being of Maori.

New Zealand Bill of Rights Act 1990

Section 12 of the BoRA affirms Article 25 of the ICCPR and provides specifically for the broad electoral rights of New Zealanders:

The BoRA also provides for a range of other rights and freedoms that are central to democracy, such as freedom of thought, conscience and religion (s. 13), freedom of expression (s. 14), association (s. 17) and assembly (s. 16), and freedom from discrimination (s. 19).

Constitution Act 1986 and Electoral Act 1993

The Constitution Act vests legislative power in Parliament, and establishes the House of Representatives as a component of Parliament with a three-year maximum term. The other component of Parliament is the Sovereign of New Zealand, represented by the Governor-General.

The Electoral Act sets out the structures and processes for the holding of national general elections, defines who can vote, and describes the qualifications for members of the House. It provides for the creation of electoral districts and the registration of political parties. Section 80 of the Electoral Act sets out those persons who are disqualified from registration as electors. These include New Zealand citizens who are outside the country and who have not been in the country within three years, some detainees under the Mental Health (Compulsory Treatment and Assessment) Act 1992, [2]certain categories of prisoners, and people on the Corrupt Practices List.

National general electoral system

The first general election using the mixed member proportional system (MMP) was held in 1996. Under MMP every voter has two votes – one for a party and one for an electorate candidate. It is the party vote that determines the overall distribution of all Parliamentary seats in the House of Representatives. However, to be entitled to a proportional share of all the seats in Parliament, a registered party must gain more than five percent of all the party votes or win at least one electorate seat. Elections must be held no more than three years apart.

The Maori electoral option

After each census, the process of redrawing electorate boundaries begins with a four-month Maori electoral option. During this period, Maori can choose to be on either the Maori electoral roll or the General electoral roll. The results form the basis for calculating the Maori electoral population and the General electoral population, and determine the number of Maori seats for the following two general elections. Currently, the 120 seats in Parliament are made up of 62 from General electorates, 7 from Maori electorates and 51 from party lists.

Citizens initiated referenda

The Citizens Initiated Referendum Act 1993 (the CIR Act) provides a process for individuals and corporate bodies to initiate national referenda on any subject. The results of such referenda are indicative only and not binding on the Government of the day.

Election oversight and review

The Chief Electoral Office, overseen by an independent Electoral Commission, conducts General Elections, by-elections and referenda. The Office provides information to voters, candidates and parties on electoral issues and may undertake reviews of the electoral system, such as the recent review of services to disabled voters.

Local government electoral system

In addition to national government, there are three types of local government in New Zealand: regional, territorial (cities and districts) and unitary (which combines the functions of a regional and territorial council).

Local government does not have a formally recognised constitutional status, although Parliament’s Standing Orders give local authorities the right to promote legislation affecting their own districts independently of central government (Department of Internal Affairs, 2002, p.3). Local authorities enjoy considerable independence from central government, but they must act within the legal framework that is established by Parliament. Local government elections occur every three years under the Local Electoral Act 2001. The Act also sets out principles to ensure fair and effective representation for individuals and communities.

Local Government Act 2002

The Local Government Act 2002 (LGA) requires local authorities to promote the social, economic, environmental and cultural well-being of communities, and to do so in a way that is sustainable now and for the future. In order to achieve this, the Act ‘promotes the accountability of local authorities to their communities’ (s. 3(c)). Section 4 requires respect for the Crown’s responsibility under the Treaty of Waitangi and improvement of opportunities for Maori to contribute to local government decision-making.

Part 6 of the LGA requires local authorities to involve citizens in decisions that affect their lives. It sets out principles for consultation with communities, including obligations to ensure the contribution of Maori to decision-making (s. 81) and to consult with all interested and affected persons (s. 82). It also sets out a process for identifying and reporting on community outcomes.

Other representative bodies

There are many other bodies that require election or representative participation. These include school boards of trustees, district health boards, statutory boards and committees (of which there are over 400), registered societies and associations, and electoral colleges (Ministry of Women’s Affairs, 2004). Iwi and Runanga trust boards are also examples of representative bodies that are often elected. Although no accurate figures exist, it can be said that many thousands of New Zealanders participate in all these bodies every day. [3]

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