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?