New Zealand

   

Quality of Democracy

#7
Key Findings
With fair and transparent electoral policies and a strong rule of law, New Zealand receives a high overall ranking (rank 7) for the quality of its democracy. Its score on this measure has declined by 0.2 points relative to 2014.

Voting policies are open and inclusive. Campaign financing is monitored by an independent commission, but private funding is criticized as being insufficiently transparent. A new media-law interpretation may allow political attack ads to be run by anyone with sufficient funds. Citizen referendums exist, but are nonbinding.

The media sector is largely controlled by Australian companies, with a proposed merger between two already-dominant figures blocked in 2017. Civil rights and political liberties are strongly protected. A new security-services law allows monitoring of New Zealanders if national security issues are at stake. Anti-discrimination regulations are broad.

Despite the lack of a written constitution, strong courts and a culture of respect for the law afford legal certainty. Corruption is very rare.

Electoral Processes

#8

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
10
The registration procedure for political parties and individual candidates in New Zealand, as specified in the 1993 Electoral Act, is fair and transparent. Following the Electoral (Administration) Amendment Act 2010, the tasks of the Electoral Commission and of the Chief Electoral Office have been combined within the Electoral Commission, which started work in October 2010.

The Electoral Act specifies that registered political parties follow democratic procedures when selecting parliamentary candidates. While the two major parties adopt a mixture of delegate and committee systems when making their selections, the Greens give their membership the final say. The other small parties by contrast tend to be more centralized both in the way they select constituency candidates and in the compilation of their party lists. Since the Act was passed, there has been only one formal challenge alleging that proper procedures had not been followed. The resulting judicial challenge was unsuccessful.

Citations:
Annual Report of the Electoral Commission for the year ended 30 June 2016 (Wellington: Electoral Commission 2016).
Electoral Act 1993 (Wellington: The Government of New Zealand 2012).
Changes to Electoral Act introduced. 22 September 2016 (https://www.beehive.govt.nz/release/changes-electoral-act-introduced) (accessed 3 December, 2016).
Electoral (Administration) Amendment Act 2010 (Wellington: The Government of New Zealand 2010).
Edwards, Bryce, 2016. Political Roundup: What’s wrong with local government? New Zealand Herald. 27 September 2016 (http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=11717848).

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
8
Allocation of election broadcasting time and funds in New Zealand’s multiparty system are based on several criteria, including: share of the vote during the previous election; seats in parliament; party membership; and results of opinion polls. The process is monitored by the independent Electoral Commission, and follows procedures laid down in the Electoral Act 1993 and the Broadcasting Act 1998. This ensures the fair coverage of different political positions, although the process has been criticized for favoring parties in decline and disadvantaging emerging parties that have yet to contest an election. Funding of political campaign broadcasts by non-party actors, and the debate over public versus private funding of political parties and campaigns are yet to secure cross-party agreement. A new interpretation of the Broadcasting Act led to a debate in 2017 as to whether the fact that the public now has been granted the right to advertise on TV and radio about politicians in addition to newspapers represents a fundamental change to how election campaigning takes place in New Zealand. It is feared that attack ads can now be run by anyone with the funds to sponsor such ads.

Media coverage of political issues is generally fair and balanced. Although in some previous elections televised debates included the leaders of all parliamentary parties, during the 2017 general election the main debates were restricted to the leaders of the two major parties, with the leaders of the largest of the small parties being invited to debate separately (Winston Peters declined to participate). A formal complaint was filed by the leader of a small party that was not invited to be represented in the televised minor party leaders’ debate. The court ruled in favor of the criteria for participation laid down by Television New Zealand, thereby confirming the small party’s exclusion from the debate. In addition to concerns about the fair treatment of minor parties in a multiparty system, the two-tiered arrangement was criticized for thwarting discussion about possible combinations for any future multiparty government.

Citations:
Broadcasting Act 1989 (Wellington: Ministry for Culture and Heritage 1989).
Electoral Act 1993 (Wellington: The Government of New Zealand 2012).
Decision of the Electoral Commission on the allocation of time and money to eligible political parties for the broadcasting of election programs for the 2014 General Election (Wellington: Electoral Commission 2014).
Edwards, Bryce, 2017. Political Roundup: Politicians under attack – should we be worried?. New Zealand Herald. 2 March 2017.

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
10
New Zealand’s electoral process is inclusive. The voting age was lowered from 21 to 20, and then again to 18 in 1974. In March 2017, the Children’s Commissioner suggested following countries such as Scotland by lowering the voting age to 16. It failed to win any significant public support. Permanent residents of 12 months standing are given the right to vote in national elections. For those who move offshore, they remain eligible to vote, providing they return home every twelve months. Citizens who live elsewhere retain their eligibility for three years. While it is compulsory to register to vote, the act of voting is voluntary (despite facing a potential fine, a growing number of young voters choose not to register). Indigenous Maori may register to vote on either the Maori electoral roll or the general roll. There are seven designated Maori seats in the current legislature. Additional Maori representatives are elected on the general roll. Electoral boundaries are redistributed every five years. Beyond legal regulations, there are focused and ongoing activities, especially by the Electoral Commission, to increase political efficacy and turnout by ethnic minorities, those with disabilities, as well as young voters. In 2014, it announced plans to implement a phone dictation voting service for blind voters and those with physical disabilities that prevent them from marking their voting paper independently and in secret. Whereas electoral turnout in the postwar period tended to fluctuate between 85% and 91%, in 2014, turnout has increased for the first time since 2005, with some 78% of registered voters participating in the 2014 election, many of them by voting early. This positive trend continued with turnout for the 2017 election reaching 79.8%. Registering for an election can be done electronically. Registered voters then receive an “easy vote” pack with further voting information.

Citations:
Access 2011: Accessibility Action Plan for the 2011 General Election and Referendum on the
Voting System (Wellington: Electoral Commission 2011).
Annual Report of the Electoral Commission for the year ended 30 June 2012 (Wellington: Electoral Commission 2012), pp. 8-9.
http://www.elections.org.nz/voters/voting-election/easyvote-cards-make-it-easy (accessed October 8, 2014).
Access 2013: General Elections 1853-2011, Dates and Turnout, http://www.elections.org.nz/events/past-events-0/general-elections-1853-2011-dates-and-turnout (Wellington: Electoral Commission 2013).
Voter turnout, http://www.elections.org.nz/events/2017-general-election/2017-general-election-results/voter-turnout-statistics (accessed January 16, 2018).
Children’s Commissioner wants to lower voting age to 16 in New Zealand. New Zealand Herald. 6 March 2017.
Electoral Commission, 2014. Party Secretary Handbook. General Elections, http://www.elections.org.nz/party-secretary-handbook, (last accessed 6 October 2014).
Raymond Miller, Democracy in New Zealand, Auckland, Auckland University Press, 2015, chapters 1, 5 and 9.

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
8
Party financing and electoral campaign financing is monitored by the independent Electoral Commission. Registered parties have upper ceilings regarding election campaign financing (including by-elections). Upper limits for anonymous donations as well as donations from abroad are comparatively low. In 2012, a government minister, John Banks, was accused of breaching the Local Government Act 2002 by failing to disclose the sources of three substantial donations made to his 2010 Auckland mayoral campaign, which he declared as anonymous. In mid-2014 the Local Government Amendment Act came into force, which aims to bring local election laws into line with the provisions of the aforementioned Electoral Amendment Act. The long-standing public-private mix of party financing continues to draw criticism. Private funding in particular is criticized for being insufficiently transparent, unfair to less well-off parties or smaller parties lacking access to parliamentary sources of personnel and funding.

Citations:
Annual Report of the Electoral Commission for the year ended 30 June 2012 (Wellington: Electoral Commission 2012), pp. 13-15.
Local Government Amendment Act 2014, http://www.legislation.govt.nz/bill/government/2013/0165/latest/versions.aspx (last accessed 6 November 2014).

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
5
New Zealand belongs to a small group of countries (the others being Italy and Switzerland) where citizens have the right to propose a national referendum. In addition, referendums are regularly initiated and are an important part of domestic politics. However, these citizens’ initiated referendums (CIRs) are legally non-binding.

CIRs were first introduced in 1993, the year the government held its own binding referendum on the reform of the electoral system. While a total of 46 CIR petitions have been launched to date, only five have come to a vote, with other proposals either failing to meet the signature target (10% of registered voters within 12 months) or having lapsed.

All five referendums secured majority support, but were subsequently rejected by the government in office at the time. Whereas CIR supporters contend that the “will of the majority” is being ignored, a consensus exists among leaders of the major political parties that the non-binding provision in CIRs should be retained. Most CIRs are initiated by individuals or small groups. In marked contrast, a petition on the political agenda against the further privatization of state assets was sponsored by the Green, Labour and New Zealand First parties. While the petition exceeded the required number of signatures, it was overtaken by events, with the sale of shares in the first of the designated state assets taking place before the date of the referendum had been determined. From its perspective, the National government argued that its 47.3% share of the vote at the previous election (compared with Labour’s 27.5%) gave it a mandate to proceed, especially since the government’s intentions had been made explicit well in advance of the election.

Citations:
Citizens Initiated Referenda Act 1993 (Wellington: The Government of New Zealand 2012).
http://www.justice.govt.nz/publications/publications-archived/2001/the-citizen-initiated-referenda-act-1993/publication (accessed October 8, 2014).
Information by the Electoral Commission.

Access to Information

#13

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/ market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
9
Freedom of the media is regulated by the Broadcasting Standards Authority. In addition, it is safeguarded by the New Zealand Press Council, an independent organization that hears complaints from consumers and publishes annual reports. There is an ongoing discussion whether the current situation adequately deals with new media as well as traditional media outlets. In 2011, the New Zealand Law Commission proposed to establish a new independent regulator (the News Media Standards Authority) that would replace the current dual public-private regulatory regime. By January 2018, this recommendation had yet to be adopted by the government.
In 2015, the Office of the Ombudsman undertook a “quality-assurance” review of the Official Information Act (OIA). It confirmed that there had been a number of complaints regarding delays in the government’s response to applications for information under the provisions of the OIA, as well as regarding the incompleteness of the information provided.
An extensive article on the state of democracy in New Zealand, published in June 2017 by the New Zealand Herald, addressed issues such as government agencies thwarting the Official Information Act, tendencies within the government to skirt accountability, and government secrecy regarding its relationship with Israel.

Citations:
Annual Report of the New Zealand Press Council 2014 (Wellington: New Zealand Press Council 2014).
https://freedomhouse.org/report/freedom-press/2016/ (accessed October 24, 2016).
https://rsf.org/en/new-zealand (accessed October 24, 2016).
Edwards, Bryce, 2017. Political Roundup: Let’s make government more democratic. The New Zealand Herald. 20 June 2017.
Search and Surveillance Act 2012 (Wellington: The Government of New Zealand 2012).
The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (Wellington: Law Commission 2011).
Online Media Standards Authority, http://www.omsa.co.nz/ (last accessed October 24, 2016).

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
4
New Zealand’s media market has been affected by major changes in the last few years. Private-media companies are increasingly subject to influence by their well-funded owners. Private and public companies are replacing public-interest content with programs seeking high audience ratings. In September 2011, the New Zealand Press Association, New Zealand’s largest news agency, closed. It was replaced by three news services, which are all Australian-owned. Consequently, apart from the Otago Daily Times, New Zealand is now one of only a handful of countries that does not have a domestically owned news agency.

New Zealand’s media market is dominated by foreign companies (mainly from Australia), although there are two public television stations (Maori TV, TVNZ) and one national public radio station called Radio New Zealand. Sky TV monopolizes pay TV. However, Igloo, a joint Sky Network Television and Television New Zealand (TVNZ) venture, has made a small selection of pay TV channels available at low cost since 2012.

In September 2016, two Australian media giants, Fairfax and APN, signed a deal to merge their New Zealand businesses, Fairfax NZ and NZME respectively. The Commerce Commission rejected the merger in May of 2017, raising doubts about whether or not this amounted to a win or lose situation for democracy.

Bloggers have gained prominence as an alternative to traditional media offers. Some of them concern themselves with political affairs and reach high numbers of visitors. Despite this development, continued constraints on media funding help prevent a strong investigative reporting culture from developing.

Citations:
Fairfax-APN merger more bad news for media diversity. The Conversation. 12 May 2016 (http://theconversation.com/fairfax-apn-merger-more-bad-news-for-media-diversity-59232) (accessed September 26, 2016).
JMAD New Zealand Media Ownership Report 2015 (http://www.aut.ac.nz/__data/assets/pdf_file/0011/608366/JMAD-2015-Report.pdf) (accessed September 26, 2016).
Edwards, Bryce. Political roundup: Congratulating and condemning media merger rejection. (http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=11851457) (accessed January 15, 2018).

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
8
Access to government information is regulated by the Official Information Act 1982. It is based on the principle that all official information should be made available to the public, but that there are restrictions with regard to the protection of the public interest (for example, national security or international relations) and the preservation of personal privacy. There are clear procedures in how queries are handled by public bodies, including a time frame of 20 working days. The Office of the Ombudsman reviews denials of access upon request. Decisions are binding, but there are no real sanctions for non-compliance. Following a number of precedent-setting decisions by the office in recent years, access to official information is now far-reaching, including access even to politically sensitive communications between political advisers and ministers as soon as these communications are made. The Official Information Act has been reviewed several times. Proposals for reform have included a reduction in the time frame for dealing with requests for official information; and more resources for the Office of the Ombudsman. These reforms have not yet been implemented. The office has instead concentrated on organizational restructuring to achieve more efficiency and effectiveness. This has to be viewed in light of the steep rise in the number of complaints the office has had to deal with in recent years. In 2012, a review of the Official Information Act by the New Zealand Law Commission resulted in several recommendations, including the appointment of a statutory officer to provide oversight over the legislation’s implementation. The primary purpose behind such a role is to provide leadership in the training and education of officials, as well as to help publicize developments. The government has yet to act on these recommendations. Recently, there has been a debate over the Reserve Bank decision to charge for most Official Information Act responses. A Dominion Post editorial claimed that this was undemocratic, calling it “the tax on democracy itself.” The Reserve Bank responded by saying that this policy is a “common, fair and reasonable response to a marked growth of OIA requests.” In June 2017 a Legislation Bill was introduced in parliament which, if enacted, would extend online access to the body of legislation by including secondary legislation.

Citations:
Annual Report of the Ombudsman 2015/2016 (Wellington: Office of the Ombudsman 2015/2016).
Bascand, Geoff, 2016. Reserve Bank: Charging for official information a ‘reasonable’ response. The Dominion Post. 19 January 2016 (http://www.stuff.co.nz/business/opinion-analysis/76020387/Reserve-Bank-Charging-for-official-information-a-reasonable-response) (accessed September 23, 2016).
New Zealand Law Commission,‘The Public’s Right to Know: Review of the Official Information Legislation’ (R125, Wellington, July 2012)

Civil Rights and Political Liberties

#4

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
8
Civil and human rights protection is based on the Bill of Rights Act 1990 and the Human Rights Act 1993, the latter of which defines the tasks of the Human Rights Commission. The Commission actively promotes compliance with civil and human rights by public bodies and in society. Recent activities concern rights within the Treaty of Waitangi and a Human Rights Action Plan 2005 with regard to violence against women and children and maltreatment in prisons and mental institutions. These have led to various activities, such as the establishment of a high-level taskforce for action on sexual violence, chaired by the secretary for justice, to advise the government. Amnesty International reported in its Annual Report 2012 that it had met with parliamentary members to discuss progress made with regard to social, economic and cultural rights (e.g., the Marine and Coastal Area (Takutai Moana) Act 2011). New Zealand signed the Optional Protocol to the U.N. Convention on the Rights of the Child on the sale of children, child prostitution and child pornography in September 2011.

The powers of the Communications Security Bureau to conduct surveillance on New Zealanders has recently been the subject of scrutiny by civil rights, internet and legal groups, including the New Zealand Law Society. The Government Communications Security Bureau (GCSB) and the Related Legislation Amendment Bill, which was debated in parliament in 2013, extended the provisions under which the GCSB could investigate and gather information on residents and citizens. This bill amended the GCSB Act 2003, which stipulated that the GCSB’s role was to conduct foreign, not domestic, surveillance. Prior to and during the 2014 election campaign, the activities of the GCSB came under close scrutiny. Controversially, New Zealand continues to be an active member of the so-called Five Eyes network, a government-level alliance that shares intelligence information on a global scale.

In August 2016, the New Zealand Intelligence and Security Bill 2016 was introduced. The bill modifies existing legislation and enhances transparency of New Zealand’s intelligence and security agencies. The introduction of the bill resulted in a significant increase in the scope and powers of the GCSB. According to the Human Rights Commission, although the bill is a significant improvement in legislation, “there are aspects of the bill which are still of concern,” notably the definition of national security. In March 2017, the Intelligence and Security Act was passed with cross-party support. It brings the GCSB and the NZ Security Intelligence Service (SIS) under the same law. In a fundamental shift in policy, it permits the GCSB to monitor New Zealanders if national security issues are at stake.

Citations:
Amnesty International Aotearoa New Zealand Annual Report 2016: https://www.amnesty.org.nz/sites/default/files/Amnesty%20International%20NZ%20Annual%20Report%202016_May.pdf (accessed November 30, 2016).
Human Rights Act 1993 (Wellington: The Government of New Zealand 2011).
New Zealand Bill of Rights Act 1990 (Wellington: The Government of New Zealand 1994).
NZ Intelligence and Security Bill 2016. New Zealand parliament https://www.parliament.nz/en/pb/bills-and-laws/bills-digests/document/51PLLaw23781/new-zealand-intelligence-and-security-bill-2016-bills (accessed 13 September, 2016).
Spying reforms allowing GCSB to spy on Kiwis pass into law with little opposition. New Zealand Herald. 21 March 2017 (http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=11822634) (accessed January 16, 2018).

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
10
The Bill of Rights Act 1990 guarantees unlimited political rights to think, speak, assemble, organize and petition without interference. Those who believe that their rights have been infringed upon can file a suit before the High Court. In addition, the New Zealand Council of Civil Liberties is an active, non-governmental organization that promotes these liberties. Freedom House assesses the situation of political rights in New Zealand as excellent. Despite being widely accepted as an important feature of New Zealand’s constitutional arrangements, the provisions of the Bill of Rights are not supreme law; that is, they have never been entrenched. During 2012 and 2013, a constitutional advisory panel appointed by the government sought the public’s view on whether the Bill of Rights should be expanded to include additional rights and be entrenched. It ultimately recommended that consultation on these issues should be continued.

Citations:
Constitutional Advisory Panel, 2013. New Zealand’s Constitution. A Report on a Conversation, http://www.ourconstitution.org.nz/store/doc/FR_Full_Report.pdf (accessed November 11, 2014).

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
9
Anti-discrimination legislation is outlined in a number of acts, including the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, and the Human Rights Amendment Act 2011 (establishing the position of a full-time disability rights commissioner within the Human Rights Commission). Even more important, the Human Rights Commission actively promotes anti-discrimination measures focusing on populations such as Maori and women. Cases of discrimination are rare, but they do occur. Maori are disproportionally represented in the prison population, which may point to problems of discrimination, as has been highlighted by the United Nations Human Rights Committee. A lasting problem is the extent to which the Treaty of Waitangi as the basis of the relationship between Maori and the state is embedded in the general legal order. The complexities of this problem have been highlighted in the controversy over the ownership of the country’s foreshore and seabed, with many Maori groups claiming that Maori had a rightful claim to the title, based on the Treaty of Waitangi. More recently, the conflict over the Kermadec marine reserve sanctuary led to tensions between the minority National government and one of its key parliamentary allies, the Maori Party. The conflict led the Maori Party to threaten to end its supply agreement with National, which would have undermined parliamentary confidence in the minority government. The government reacted by postponing a final decision on the project.

Citations:
Foreshore and Seabed Act 2004 (Wellington: The Government of New Zealand 2011).
Human Rights Amendment Bill 2011 (Wellington: The Government of New Zealand 2011).
Human Rights and the Treaty of Waitangi: Draft for Discussion (Auckland: Human Rights Commission 2010).
New Zealand Bill of Rights Act 1990 (Wellington: The Government of New Zealand 1994).
Privacy Act 1993 (Wellington: The Government of New Zealand 2013).
Bramwell, Chris, 2016. Māori Party puts government on notice over Kermadec row. 15 September, 2016. Radio New Zealand. http://www.radionz.co.nz/news/political/313354/maori-party-puts-govt-on-notice-over-kermadec-row (accessed 12 October, 2016).

Rule of Law

#2

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
10
Although New Zealand, following the British tradition, does not have a codified constitution but instead a mix of conventions, statute law (Constitution Act 1986, Bill of Rights Act 1990, Electoral Act 1993 and the Treaty of Waitangi) and common law, the executive acts according to the principles of a constitutional state. A number of independent bodies, such as the Office of the Ombudsman, strengthen accountability.

In “A Constitution for Aotearoa New Zealand,” former prime minister Sir Geoffrey Palmer proposed a codified constitution for New Zealand. As of the end of September 2016, comments on the proposals were being sought from the public. However, based on previous responses to written constitutions, the level of public interest is low, being restricted largely to the legal and academic communities.

Citations:
Annual Report of the Ombudsman 2015/2016 (Wellington: Office of the Ombudsman 2015/2016).
Constitutional Advisory Panel, 2013. New Zealand’s Constitution. A Report on a Conversation, http://www.ourconstitution.org.nz/store/doc/FR_Full_Report.pdf (accessed November 11, 2014).
Draft Constitution for New Zealand proposed in new book. The Constitution Unit. UCL. 27 September 2016. https://constitution-unit.com/2016/09/27/draft-constitution-for-new-zealand-proposed-in-new-book/ (accessed 28 September, 2016).

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
10
New Zealand does not have a Constitutional Court with concrete or abstract judicial review. While it is the role of the judiciary to interpret the laws and challenge the authority of the executive where it exceeds its parliamentary powers, the judiciary cannot declare parliamentary decisions unconstitutional. This is because under the Westminster system of which many Commonwealth countries are a part, parliament is sovereign. The courts may, however, ask the House of Representatives to clarify clauses. There is an extended and professional hierarchical judicial system with the possibility of appeals. Since 2003, New Zealand’s highest court has been the Supreme Court, taking the place of the Judicial Committee of the Privy Council in London that had in the past heard appeals from New Zealand. An institution specific to the country is the Maori Land Court, which hears cases relating to Maori land (about 5% of the total area of the country). Equally important is a strong culture of respect for the legal system.

Citations:
http://www.justice.govt.nz/courts/maori-land-court (accessed October 20, 2015).

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
8
Although judicial appointments are made by the executive, it is a strong constitutional convention in New Zealand that, in deciding who is to be appointed, the attorney general acts independently of political party considerations. Judges are appointed according to their qualifications, personal qualities and relevant experience. The convention is that the attorney general mentions appointments at cabinet meetings after they have been determined. The appointments are not discussed or approved by the cabinet. The appointment process followed by the attorney general is not formally regulated. There have been discussions of how to widen the search for potential candidates beyond the conventional career paths, but not with regard to a formal appointment procedure, as there is a widespread belief that the system has worked exceptionally well. In practice a number of people are consulted before appointments are made, including the opposition’s justice spokesperson as well as civil society groups. In 2012, a review by the New Zealand Law Commission recommended that greater transparency and accountability be given to the appointment process through the publication by the chief justice of an annual report, as well as the publication by the attorney general of an explanation of the process by which members of the judiciary are appointed and the qualifications they are expected to hold. The government indicated that it intended to adopt a number of the Law Commission’s recommendations. These have yet to be implemented.

Citations:
Paul Bellamy and John Henderson, Democracy in New Zealand (Christchurch: MacMillan Brown Centre for Pacific Studies, 2002).
New Zealand Law Commission, ‘Review of the Judicature Act 1908: Toward a New Courts Act’ (R126, Wellington, 2012).

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
10
New Zealand is one of the least corrupt countries in the world. Prevention of corruption is strongly safeguarded by such independent institutions as the auditor general and the Office of the Ombudsman. In addition, New Zealand has ratified all relevant international anti-bribery conventions of the OECD and the United Nations. All available indices confirm that New Zealand scores particularly high regarding corruption prevention, including in the private sector. Transparency International’s Corruption Perceptions Index 2016 found New Zealand to be the least corrupt country in the world, equal to Denmark.

Citations:
Freedom House: Freedom in the World 2016: https://freedomhouse.org/report/freedom-world/freedom-world-2016 (accessed October 24, 2016).
Corruption Perceptions Index 2016. Transparency International. https://www.transparency.org/news/feature/corruption_perceptions_index_2016 (accessed 4th July 2017).
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