New Zealanders who stay overseas for too long don't get a vote. Is that right?

When should a member of the New Zealand community lose the right to take part in deciding how that community will live together? Or, to put it more prosaically, at what point do we remove the vote from New Zealanders?

I've posted on this issue before in relation to prisoners - see here and here. But there's another restriction on the right of New Zealanders to vote that I've been meaning to address for a while. It's taken a Canadian court decision to finally spur me into doing so, but I'll get to that in due course.

Before then, what is this restriction of which I speak? Well, under the Electoral Act, "a New Zealand citizen who ... is outside New Zealand and has not been in New Zealand within the last 3 years" loses her or his right to register as an elector (and hence, to cast a vote at election time). Similarly, "a permanent resident of New Zealand (not being a New Zealand citizen) who ... is outside New Zealand and has not been in New Zealand within the last 12 months" also loses her or his right to register as an elector.

So, if you leave New Zealand for overseas for work or study or just OE reasons, and you stay away for three years (or one year, if you are only a permanent resident), then you lose the right to cast a vote. But if you return to New Zealand for any period of time, the clock resets on this disqualification period. And if you do get disqualified from voting under this rule, you get back the right to vote on the day you return to the country.

(There also are exceptions to this rule for the sorts of things you might expect, such as public servants or defence force personnel and their families who are on overseas postings.)

Why does this rule exist? I haven't traced its origins precisely, but you can think of the arguments for it. Voting is the process by which members of a community determine who is going to govern it (and, by implication, what sort of laws are going to be made to collectively control our activities). Therefore, only members of that community should be allowed to take part in that process. While New Zealand is more generous than many other countries in that we let permanent residents vote alongside full citizens, we also deem anyone who stays away from New Zealand for too long (three years for citizens, one year for permanent residents) to no longer be a member of the community in good enough standing to participate in collectively governing the country.

And why do we deem such people to no longer be members of the community who deserve to take part in deciding how we will live together? Well, if they are now living overseas, then they won't be subject to the laws that the people they vote for choose to adopt. They won't know what is happening in New Zealand, so their vote will be an ill-informed one. They've chosen to make their lives elsewhere, so they've forfeited their right to have a say in their original homeland.

These sorts of arguments were good enough to convince Parliament to retain the rule when New Zealand switched to using MMP back in 1993. And it's been in place since then with little or no attention. At least, until recently.

Because while folks living in New Zealand don't really notice its effect (because they aren't affected by it!), there's a fair few expatriates who do get caught by it. (I don't know exactly how many, but I've seen the figure of 20% of all expats being quoted.) Some of these disqualified expats then care about the matter, because they want to continue to have their say in how the place they still think of as "home" will be run. A state of affairs that has led some expats to seek to form their own political party, with the goal of "lobby[ing] for the repeal of the section of the New Zealand Electoral Act which disqualifies New Zealand citizens from voting if they have not visited New Zealand in the last three years."

Now, I don't know if this proposed party will ever get off the ground. It claimed to have signed up sufficient numbers to register with the Electoral Commission back in February, but since then there hasn't been a peep from it. Even if it does register, the chances of it gaining any sort of traction are not that great. Because, if we are being completely honest, the large majority of Kiwis who head away overseas do not care enough about politics back home to request and complete the special declaration vote necessary to cast a ballot. At the 2011 election, there were just a bit over 22,000 such votes - about 1% of the total votes that year - from the estimated 600,000-to-1 million New Zealanders living overseas.

So I think it is safe to assume that the chances of an Expat Party holding the balance of power after September 20th and demanding a change to the law regarding overseas voters are zero or worse. Which is not to say that the issue does not matter. Because we might still ask, are we doing the right thing by saying to New Zealanders who have chosen to live overseas "sorry - if you stay away too long, we won't let you vote anymore"?

It's here that the Canadian court case I mentioned earlier comes in. Because late last week, an Ontario court struck down as an unjustifiable breach of the right to vote contained in the Canadian Charter a provision in Canada's electoral law that removed the right to vote from Canadians who had resided outside Canada for 5 years. There's a few points to note about this decision and how it might reflect on New Zealand's law.

First, the Canadian rule was both tougher and more lenient than New Zealand's is. Obviously, it allowed people to be outside Canada for 5 years before they lost the right to vote, as opposed to New Zealand's 3 (or 1). However, it also required that a person re-establish residency in Canada within that period if they wanted to retain their right to vote, as opposed to just visit the country as New Zealand does. So it's open to argument which approach places the greater restriction on the right to vote.

Second, one of the reasons that the Canadian judge gave for striking down the rule was that Canada allows its prisoners to vote (itself the result of a Canadian court decision), and so it would be inconsistent to take it away from law-abiding citizens who choose to live outside Canada's borders. New Zealand, of course, took away the right of its prisoners to vote back in 2010. But the law that did so almost certainly was inconsistent with our Bill of Rights Act (as the High Court may declare at some point this year); so can an unjustifiably rights infringing law be used as a justification for imposing other restrictions on the right to vote?

Third, at least part of the Court's reasoning rested on the fact that Canadian citizens living overseas continue to contribute income tax to the country's coffers. I don't know to what extent New Zealand expats face a legal duty to do the same. However, given the requirement to do things like repay student loan debt whilst overseas, there may not be that difference may not be that great.

Finally, a Canadian decision on the merits of disqualifying people who live overseas is not binding on New Zealand. But it might still make us take pause and think - are we doing the right thing here? If a Kiwi couple take their two kids over to Brisbane because the work prospects there are better, and then can't afford to make the trip back home for three years, should we oust them from "our" community to the extent that we say they've forfeited their right to have a say in who will (and how they will) govern "our" country?

Comments (12)

by Fentex on May 06, 2014

Are these people out of New Zealand, at risk of losing their vote, paying NZ taxes?

If not one might argue it's a bit much to work away from NZ, not pay it's taxes for prolonged periods to also claim authority over Nz governance. It's seems a little bit like wishing to have cake while eating it.

Surely we'd agree if someone was absent thirty years it's gone on long enough, so perhaps also twenty, perhaps ten? Is it really just picking the length of absence?

If so, then is not the length of one term of parliament a good length to pick? If you've left for a period longer than any government you may have voted for seems like it has some logic for a period to choose.

by Alan Johnstone on May 06, 2014
Alan Johnstone

No representation without taxation, to parhrase the American revolution.

by Andrew Geddis on May 06, 2014
Andrew Geddis

Are these people out of New Zealand, at risk of losing their vote, paying NZ taxes?

As I say in my post, I don't know. Not income taxes, of course - if you are being paid in Austraila, you'll be paying tax on that income in Australia (and so on). But there'll be other kinds of taxes that may still being paid here ... if you have a bank account in NZ, then you'll pay tax on any interest you earn. And there'll be other things expats continue to be legally obligated to pay, such as student loan repayments, child support, etc.

But in general ... I don't know.

by Alan Johnstone on May 06, 2014
Alan Johnstone

If you can't spend 1 day every three years in the country, then I don't think you have any claim to membership of the NZ community.

by Emily-Kate Robertson on May 06, 2014
Emily-Kate Robertson

Hmm this is a tough one. The three year mark seems slightly arbitrary, in that a lot of policy changes implemented as a result of election outcomes will outlast the time the person in question is out of the country, so even if not in the country when the election occured, they will still feel the impact of the election results, so should have a say. Most people would agree that those who leave for long periods of time without intending to return here to live should forfeit their vote, as they are completely detached from the social issues, and no need to make an informed decision as they would not face any possible consequences. The problem being that, there really is no logical cut off point because people leave New Zealand for extremely variant periods of time for various reasons.

by stuart munro on May 07, 2014
stuart munro

As an expat I'm not very thrilled to be disenfranchised so easily - but I'm somewhat used to it - as a deepsea fisherman operating in NZ waters I had the same problem.

Like most New Zealanders I would like to return at some point and find the country unruined. The poor economic stewardship of the current government is therefore particularly relevant - returning to a jobless economy with the prospect of even briefly suffering under the brutal stupidity of Paula Bennett has no appeal whatsoever.

The slave ships are still there. They'll never go until we get an honest government. Fixing it is not a priority for Key - Slavery? He's relaxed about it.

by BeShakey on May 07, 2014

For those who think that being away from NZ for three years justifies taking away the right to vote because the person is not sufficiently connected with the country, why do you a short visit once every three years magics up a connection? Doesn't make much sense to me.

by Lee Churchman on May 07, 2014
Lee Churchman

If a Kiwi couple take their two kids over to Brisbane because the work prospects there are better, and then can't afford to make the trip back home for three years, should we oust them from "our" community to the extent that we say they've forfeited their right to have a say in who will (and how they will) govern "our" country?

Yes. I would treat citizenship rights the same way, if it were possible.The current rights regime seems to me increasingly odd when people move around so much – the idea of a "nation" seems sort of pointless, whereas countries make sense as a contractual agreement between people who live with each other.

by Andrew Osborn on May 07, 2014
Andrew Osborn

The point about the prisoners losing the vote was amusing. From the same legal position - the Bill of Rights - could they equally well argue that incarceration also takes away their 'rights' since section 18.1 of the very same act gives them the 'right to freedom of movement and residence'?

by BeShakey on May 08, 2014

No - such detention is a reasonable limit on the right to freedom of movement can be demonstrably justified in a free and just society. The right to freedom of movement (and indeed most rights in the Bill of Rights) is subject to a range of limitations that, mostly, meet the requirement above.

by stuart munro on May 14, 2014
stuart munro

I'm a little surprised at how quick folk are to disenfranchise. Unless someone arranges another citizenship I don't consider there should be any haste to remove voting rights. Should not everyone have the right to political participation somewhere? Perhaps that is inconvenient to some advantaged group.

by Alistair Connor on May 29, 2014
Alistair Connor

Citizenship of another nation is no impediment to voting in NZ, nor should it be. I am of the opinion that the world would be a better place if more people held dual or multiple citizenships.

I happen to think that the three-year rule is very fair and reasonable, since it suits me fine. I generally get back about every three years (I was in NZ two weeks ago for my mother's funeral). More generally : if I care enough to vote (and only a small proportion of expats do, apparently), that is reason enough to allow me to vote.

Each nation should make its own rules on this. With the exception of te tangata phenua, the rest of us  are recent immigrants, so there's no reason we should have the same rules as countries defined by centuries or millenia of common culture.

I also think that depriving prisoners of the vote is iniquitous Certain crimes, of a political nature, may justify disenfranchising an individual. But to do it collectively is completely arbitrary. Why not poke prisoners' eyes out while we're at it, or chop off their extremities? 

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