New Zealand

   

Quality of Democracy

#8
Key Findings
With fair and transparent electoral policies and a strong rule of law, New Zealand receives a high overall ranking (rank 8) for the quality of its democracy. Its score on this measure has declined by 0.3 points relative to 2014.

Voting policies are open and inclusive. Seven seats are currently designated for Māori representatives. A new law requires lawmakers who quit or are expelled from their parties to give up their seats. Campaign financing is monitored by an independent commission, but private funding is criticized as being insufficiently transparent. A binding referendum on cannabis legalization will be held in 2020.

The broadcast media sector is largely controlled by Australian companies, with the print sector also effectively a duopoly. Civil rights and political liberties are strongly protected. Child poverty is increasingly being viewed as a human-rights issue. Anti-discrimination regulations are broad, but Māori and Pacific Islanders experience occasional discrimination in the education and health system.

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

#11

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
9
New Zealand has a rich history of free and fair elections and the electoral process is characterized by a very high level of integrity. 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 Election Integrity Project, which measures each state of the electoral cycle by standardized 100-point scores, rated the integrity quality of 2017 parliamentary election as very high and noted especially high quality in the areas of party registristration, candidate procedure, district boundaries, vote counting and autonomy of the election management body. However, deficits have been noted in regard to voter registration, media access for political parties and campaign financing).
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. In September 2018 parliament passed, with the votes of the Greens, New Zealand First and Labour, a controversial amendment to the Electoral Integrity Bill (so-called “waka-jumping bill”). The bill, which was initially opposed by the Greens, had its roots in the defection of several members of parliament from the small parties, especially New Zealand First. The bill required that members of parliament who are expelled from or quit their party will automatically lose their seat, thereby triggering a by-election. Critics argue that this amendment will enable political parties to limit freedom of speech and ignore or reverse the will of voters. Supporters, on the other hand, argue that allowing parliamentarians to leave their parties while remaining in parliament distorts the proportionality of parliament and frustrates the will of affected voters.

Citations:
Miller, Raymond, ‘Selecting Candidates,’ in Miller, Party Politics in New Zealand, Oxford, 2005, pp 109-126.
Norris, Pippa, Thomas Wynter and Sarah Cameron. March 2018. Corruption and Coercion: The Year in Elections 2017. https://www.electoralintegrityproject.com/the-year-in-elections-2017/
McCulloch, Craig. 27 September 2018. Waka-jumping bill passes into law after heated debate. https://www.radionz.co.nz/news/political/367427/waka-jumping-bill-passes-into-law-after-heated-debate
New Zealand Parliament. Electoral (Integrity) Amendment Bill, https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_75706/electoral-integrity-amendment-bill

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
According to the 2017 Election Integrity report, media coverage (together with campaign finance) was evaluated to be relatively poor in comparison with equivalent democracies in Asia and Ocenaia and western Europe. With a score of 48 (on a scale from 0 to 100), New Zealand was evaluated worse than South Korea (56) and Japan (52) and equal to the United Kingdom. Major issues are the allocation of election broadcasting time based on criteria that favor the two largest parties, leading to unequal access to funds for political campaign broadcasts and a potentially undue influence exercised by non-party actors. 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 (NZ First’s Winston Peters declined to participate). A formal complaint over the exclusion of small parties from the debate was rejected by the courts. 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. In fact, in its report on the 2017 election, the Election Commission again recommended “that Parliament considers whether the allocation criteria and the current broadcasting regime are fit for purpose.”

Citations:
Report of the Election Commission on the 2017 General Election. April 2018. https://www.elections.org.nz/sites/default/files/plain-page/attachments/report_o f_the_2017_general_election.pdf
Pippa Norris, Thomas Wynter and Sarah Cameron. March 2018. Corruption and Coercion: The Year in Elections 2017. https://www.electoralintegrityproject.com/the-year-in-elections-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 and voter registration and voting process is non-discriminatory. Since 1974, the voting age has been 18 years. Discussions concerning lowering the voting age to 16 have seen little progress. 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 Māori may register to vote on either the Māori electoral roll or the general roll. There are seven designated Māori seats in the current legislature (separate Māori representation was introduced in 1867). Additional Māori 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. Whereas electoral turnout in the postwar period tended to fluctuate between 85% and 91%, in 2014 turnout increased for the first time since 2005. This positive trend continued with turnout for the 2017 election reaching 79.8%, with many voters (47%) voting in advance. Registering for an election can be done electronically. Registered voters then receive an “easy vote” pack with further voting information. However, the Election Commission Report on the 2017 election mentions the need for further “streamlining [of] the special vote process to reduce the impact of the growth of special votes on the timeliness of election results, providing a more accessible online enrollment option to reduce late enrollment, removing restrictions on voting place locations, and addressing barriers that affect voters on the unpublished roll, remote and disabled voters.” Relevant topics of current discussion include extending voting rights to prison inmates.

Citations:
Access 2011: Accessibility Action Plan for the 2011 General Election and Referendum on the
Voting System (Wellington: Electoral Commission 2011).
Raymond Miller, Democracy in New Zealand, Auckland, Auckland University Press, 2015, chapters 1, 5 and 9.
Report of the Election Commission on the 2017 General Election. April 2018. https://www.elections.org.nz/sites/default/files/plain-page/attachments/report_of_the_2017_general_election.pdf

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 are monitored by the Electoral Commission. Registered parties have upper limits regarding election campaign financing (including by-elections). Upper limits for anonymous donations as well as donations from abroad are comparatively low (NZD1500).The long-standing public-private mix of party financing continues to draw criticism. Private funding in particular is criticized for being insufficiently transparent and unfair to less well-off parties or smaller parties lacking access to parliamentary sources of personnel and funding. According to a research report published in late 2017, more than half of all donations over NZD1500 in 2011-2016 came as donations of NZD15,000 or more. Unsurprisingly, the National party received more donations than Labour, NZ First and the Greens combined, mainly due to the large number of donations of more than NZD5,000. In October 2018, the Justice Minister announced that his government would consider changing the political funding rules, including lowering the threshold for anonymous donations (NZD1000), introducing a cap for individual donations (NZD35,000) and banning overseas donations. Yet, it is important to distinguish private donations (made primarily by individual donors) from parliamentary funding. For example, NZ First received NZD0.3 million in donations, but NZD11.5 million in parliamentary funding in the fiscal year 2017-2018.

Citations:
Max Rashbrooke. 2017. Bridges Both Ways: Transforming the Openness of New Zealand Government. Institute for Governance and Policy Studies, Victoria University of Wellington.
NZ Herald. 2018..Government considering changing political funding rules. 23 October 2018. https://www.newstalkzb.co.nz/on-air/larry-williams-drive/audio/max-rushbrooke-government-considering-changing-political-funding-rules/

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
Citizens have the right to propose a national referendum. Legally non-binding Citizens’ Initiated Referendums (CIRs) were first introduced in 1993, the year the government held its own binding referendum on the reform of the electoral system. Most CIRs are initiated by individuals or small groups. 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.
After the 2017 election, the Greens, Labour and NZ First agreed to hold a referendum on recreational marijuana before or at the 2020 election. In December 2017, the government announced that it would be holding a binding referendum on legalizing the personal use of cannabis during the 2020 general election. However, in November 2018, the Justice Minister announced the government would consider rolling several referendums together: that is, euthanasia (“end of life choice” in the case of terminal illness); the MMP system of governance; and the legalization of recreational marijuana.

Citations:
News Hub. 2018. Triple-header referendum looms for 2020. 26 November 2018. https://www.newshub.co.nz/home/politics/2018/11/triple-header-referendum-looms-for-2020.html.

Access to Information

#15

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. Both public and private media are independent from political parties and the government. Media freedom is also 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 recent years, there have been a number of scandals that led organizations such as Reporters Without Borders (RSF) to downgrade press freedom in New Zealand. However, in the most recent 2018 report, the country improved from 13th to 8th. While the media is mostly free from political pressure, economic factors such as concentrated media ownership are a constant danger for an independent and pluralistic media. In this regard, the decision of the Commerce Commission to reject the merger of the country’s two biggest media groups, NZME and Fairfax, was crucial. Journalists and media organizations are demanding amendments to the Official Information Act, which, in their opinion give government agencies undue leverage to respond to information requests. The new Labour-led government announced its willingness to improve protection for whistleblowers; so far, the government has not followed through with legislative initiatives.

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).
RSF 2018. 2018 World Press Freedom Index. https://rsf.org/en/new-zealand.

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 is only partly competitive. The national media market is dominated by a small number of mostly foreign companies (mainly from Australia), though there are two public television stations (Māori TV, TVNZ) and one national, commercial-free, public radio station called Radio New Zealand (RNZ). The combined audience reach of RNZ’s main programs showed an increase in three consecutive surveys and the latest survey showed a 12% share of the total radio audience in the country.
Sky TV monopolizes pay TV. 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 loss situation for democracy. In September 2018, the Court of Appeal also ruled against an NZME-Stuff merger, which brought that merger to a conclusion.
Bloggers have gained prominence as an alternative to traditional media offers. Some of them concern themselves with political affairs and receive high numbers of visitors. Despite this development, continued constraints on media funding help prevent a strong investigative reporting culture from developing.
With regard to print media, NZME and Stuff enjoy a duopoly control over the national print newspaper market. The combined marked share of the two companies was estimated at nearly 90% in 2016 (latest available data). Furthermore, 2017-2018 saw a substantial decline in the circulation of newspapers: 20% combined circulation loss for the four largest daily newspapers and 15 regionals. In 2018, Stuff closed more than 35% of its print newspapers and announced additional cuts in community papers. In contrast to the shrinking print newspaper market, the digital news market consolidated and expanded. In addition to digital sites of conventional newspapers, there are multiple independently owned digital media outlets which provide at least some news content. On a positive note, the ethnic media market continued to expand in 2018.

Citations:
JMAD New Zealand Media Ownership Report 2017. https://www.aut.ac.nz/__data/assets/pdf_file/0006/149946/JMAD-2017-Report.pdf
JMAD New Zealand Media Ownership Report 2018. https://www.aut.ac.nz/__data/assets/pdf_file/0013/231511/JMAD-2018-Report.pdf
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, which has been reviewed several times. 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 for how queries are handled by public bodies, including a time frame of 20 working days to respond. The Office of the Ombudsman reviews denials of access upon request. Following a number of precedent-setting decisions by the office in recent years, access to official information is now far-reaching, including access to politically sensitive communications between political advisers and ministers as soon as these communications are made. According to the Chief Ombudsman, the number of Official Information Act (OIA) complaints made to the Ombudsman had increased by 30% in the first half of 2018 compared to the equivalent 2016 period (OIA complaints data, covering the six months to December 2018, will be released in March 2019). Most of the complaints were in respect of agencies refusing or delaying their responses to requests.
The OIA scores 94 out of 150 according to the Global Right to Information (RTI) rating, and is the highest among developed, English-speaking countries. However, government agencies have been criticized for taking longer periods of time to respond to information requests than allowed by the OIA. Compliance by agencies and ministers with OIA continues to be a public concern. The independent authority, the Office of the Chief Ombudsman, publishes biannual data on OIA complaints against ministers and agencies. The previous IRM report recommended reforming the OIA to improve public access to information. Commitment 2 in the current action plan focuses on improving government agency practices around requests for official information, but the action plan falls short of addressing a comprehensive reform of the law.

Citations:
StatsNZ. 2018.Official Information Act requests. https://www.stats.govt.nz/about-us/official-information-act-requests/#responses
Ombudsman 2018. OIA complaints data. http://www.ombudsman.parliament.nz/resources-and-publications/oia-complaints-data
RTI 2018. http://www.rti-rating.org/view_country/?country_name=New%20Zealand.
David Fisher, ‘Government needs to live by the spirit of the Official Information Act,’ NZ Herald, 26 October 2017, www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11937072.

Civil Rights and Political Liberties

#6

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
New Zealand has a well-institutionalized liberal democracy with fully implemented and protected civil rights. Based on the Bill of Rights Act 1990 and the Human Rights Act 1993, the Human Rights Commission actively promotes compliance with civil and human rights by public bodies and in society. The government enforces strong legislation protecting the rights of LGBT (lesbian, gay, bisexual, and transgender) individuals. 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. 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. According to the Child Poverty Monitor 2018 Technical Report, almost one out of three children in New Zealand were living in poverty in 2017, with children of Māori and Pacific Islander descent being particularly vulnerable. The Labour-led govenrment has made fighting child poverty a priority, a condition that is widely considered to be a threat to the human rights of large numbers of New Zealand children.
The powers of the Government Communications Security Bureau (GCSB) 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. 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. The New Zealand Intelligence and Security Bill 2016 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 represents a significant improvement to legislation, “there are aspects of the bill which are still of concern,” notably the definition of national security. The 2017 Intelligence and Security Act 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:
New Zealand Child and Youth Epidemiology Service 2018. Child Poverty Monitor. 2018. Technical Report. https://ourarchive.otago.ac.nz/bitstream/handle/10523/8697/CPM_2018_FINAL.pdf?sequence=6&isAllowed=y
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
Political liberties are effectively protected under the Bill of Rights Act 1990. Those who believe that their rights have been infringed upon can file a suit before the High Court. Although the bill has the status of ordinary law and can be amended or repealed by a simple majority of parliament, every effort has been made to protect and enhance the integrity of the bill as a fundamental feature of New Zealand’s constitutional arrangements. 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.

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
8
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). The Human Rights Act protects all people in New Zealand from discrimination including on the basis of gender, religion, ethnicity and sexual orientation. However, Māori – who account for approximately 16% of the population – are disproportionally represented in the prison population (about 50% of the total prison population as of December 2017) and all detention centers, 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 Māori 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 Māori groups claiming that Māori had a rightful claim to the title, based on the Treaty of Waitangi. Māori and Pacific Islanders also experience occasional discrimination in the education and health system. As Amnesty International reported in its 2017-2018 report, the Waitangi Tribunal, a permanent commission of inquiry, found that the government had failed to prioritize the reduction of the high rate of recidivism among Māori and had breached its Treaty of Waitangi obligations. The commission called for urgent practical action to reduce the number.

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/māori-party-puts-govt-on-notice-over-kermadec-row (accessed 12 October, 2016).
Amnesty International. 2018. New Zealand 2017/2018. https://www.amnesty.org/en/countries/asia-and-the-pacific/new-zealand/report-new-zealand/

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
New Zealand follows the British tradition and, therefore, its constitution is not found in a single constitutional text. Instead, the constitution includes a mix of conventions, statute laws and common laws within the framework of a largely unwritten constitution. In addition, the Treaty of Waitangi is increasingly seen as the founding document of New Zealand. The Constitution Act 1986 is a key formal statement of New Zealand’s system of government, in particular the roles of the executive, legislature and the judiciary. Other important legislation includes the Electoral Act 1993, the State Sector Act 1988, the Supreme Court Act 2003, the Judicature Act 1908, the Treaty of Waitangi Act 1975, the Official Information Act 1982, the Ombudsmen Act 1975, the New Zealand Bill of Rights Act 1990, and the Human Rights Act 1993.
The scattered and incomplete nature of these documents notwithstanding, New Zealand constantly receives the highest scores in comparative measures of the quality, consistency and transparency of the rule of law.

Citations:
McLean, Janet and Alison Quentin-Baxter. 2018. The Realm of New Zealand: The Sovereign, The Governor-General, The Crown. Auckland: The University of Auckland Press.

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 the absolute right of 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. On the other hand, the courts may ask parliament to provide clarification of its decisions. The judicial system is hierarchical, with the possibility of appeal. 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. Still, legislative action is not justiciable in the High Court under the existing constitutional arrangements; parliament remains supreme in law. Yet, there are reform discussions which refer to the enhancement of judicial power to consider the constitutionality of legislation, and to invalidate it where necessary. An institution specific to the country is the Māori Land Court, which hears cases relating to Māori 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/māori-land-court (accessed October 20, 2015).
Pohlmann, Martin. 2017. he Development of Judicial Review LLM RESEARCH PAPER LAWS 529: CONSTITUTIONAL CHANGE AND GOVERNMENT LAW. Victoria: University of Wellington. https://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/6320/paper_access.pdf?sequence=2

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
All judicial appointments are made by the governor-general based on the recommendation of the attorney-general. The convention is that the attorney-general recommends new appointments, with the exception of the chief justice, Māori Land Court and court of appeal judges. Appointment of the chief justice is recommended by the prime minister.
The appointment process followed by the attorney-general is not formally regulated. That said, there is a strong constitutional convention in New Zealand that, in deciding who is to be appointed, the attorney-general acts independently of party political considerations. There is a prior process of consultation, however, that is likely to include senior members of the judiciary and legal profession. Judges enjoy security of tenure and great judicial independence. 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. So far, however, the recommendations of the Law Commission have not been 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).
Benjamin Sutter. 2015. Appointment, Discipline and Removel of Judges: A Comparison of the Swiss and New Zealand Judiciaries. 46 VUWLR, pp. 267-306.
Stuff. 2018. Justice Helen Winkelmann appointed Chief Justice. December 17. https://www.stuff.co.nz/national/politics/109416961/justice-helen-winkelmann-appointed-chief-justice

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’s public sector is one of the least corrupt in the world. There is a very low risk of encountering corruption in the public service, police or the judicial system. 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. Corruption is also low in the private sector, though critical studies point to some problems, for example in the construction and housing markets. The Deloitte Bribery and Corruption Survey 2017 (the next survey will be published in early 2019) found that approximately 20% of New Zealand companies surveyed had detected some form of corruption – about the same level as the previous survey two years before.

Citations:
Matthewman S (2017) ‘Look no further than the exterior’: Corruption in New Zealand.
International Journal for Crime, Justice and Social Democracy 6(4): 71‐85. DOI:
10.5204/ijcjsd.v6i4.439.
Deloitte. 2017. One step ahead – Obtaining and maintaining the edge Deloitte Bribery and Corruption Survey 2017. Australia and New Zealand.https://www2.deloitte.com/nz/bribery-corruption-survey
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