Chapter 6: Democratic rights
Te tika ki te whai i te whakatau o te nuinga
1. Everyone has the right to take part in the government
of his country, directly or through freely chosen representatives.
has the right to equal access to public
service in his country.
3. The will of the people shall be the basis of the
authority of government;
this will shall be expressed in periodic and genuine elections which shall
be by universal and equal suffrage and shall be held by secret vote or
free voting procedures.
(Universal Declaration of Human Rights, Article 21)
Every one has duties to the community in which alone the free and full development
of his personality is possible.
(Universal Declaration of Human Rights, Article 29)
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
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,
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
- 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,
The three main conditions for realising popular control and political equality
- 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
- an active civil society (people working together who can channel popular opinion
and engage with government) (Beetham,
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
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
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:
Every New Zealand citizen who is of or over the age of 18 years
- Has the right to vote in genuine periodic elections of members of the House
of Representatives, which elections shall be by equal suffrage and by secret
- Is qualified for membership of the House of Representatives.
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, 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.