New Zealand

   

Quality of Democracy

#9
Key Findings
With fair and transparent electoral policies and a strong rule of law, New Zealand receives a high overall ranking (rank 9) 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 parliamentary seats are currently designated for Māori representatives. Turnout rose in 2020 despite a lockdown-necessitated election delay. Campaign financing is monitored by an independent commission, but private funding is criticized as being insufficiently transparent. Voters supported assisted dying but not cannabis legalization in referendums held in 2020.

The broadcast media sector is largely controlled by international companies. Civil rights and political liberties are strongly protected, though new police warrantless-search powers granted in the wake of terrorist attacks have been criticized. Māori and Pacific Islander people experience significant disadvantages. Some positive-discrimination measures for these communities exist.

Courts have ruled that employment-based vaccine mandates are impermissible. Despite the lack of a written constitution, strong courts and a culture of respect for the law create legal certainty. Corruption is very rare.

Electoral Processes

#14

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 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 (Miller 2005). In September 2018, parliament passed a controversial amendment to the Electoral Integrity Bill (so-called “waka-jumping” bill). The bill requires 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 (McCulloch 2018).

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
7
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/Oceania 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). 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 (Norris et al 2017).

The televised party leader debates represent a recurring point of contention. While in the past, these debates included the leaders of all parties represented in parliament, both in the run-up to the 2017 and 2020 elections, the leaders of the two largest parties (Labour, National) and the leaders of minor parties held separate TV debates. In 2017, a formal complaint over the exclusion of small parties from the debate was rejected by the courts. In 2020, Advance NZ – a fringe party that had repeatedly made false claims about the COVID-19 pandemic (including the claim that 5G mobile networks spread the virus) and ended up winning less than 1% of the vote – went to court over its exclusion from the “minor parties” TV debate. The judge rejected the claim, stressing that “courts will not lightly interfere with editorial decisions of media because an independent media, divorced from political influence, is critically important for a functioning democracy” (Hurley 2020).

Smaller parties have also criticized the unequal allocation of public funding for election broadcasts. For example, in 2020, Labour and National claimed $2.5 million out of a total of just over $4 million, leaving the rest to be fought over by minor contenders (Braae 2020).

Citations:
Braae (2020) “Minor parties furious at low allocation for TV and radio campaigning.” The Spinoff. https://thespinoff.co.nz/politics/09-06-2020/minor-parties-furious-at-low-allocation-for-tv-and-radio-campaigning

Hurley (2020) “Election 2020: New Conservative fails in High Court to argue for TVNZ debate inclusion.” New Zealand Herald. https://www.nzherald.co.nz/business/election-2020-new-conservative-fails-in-high-court-to-argue-for-tvnz-debate-inclusion/N6GM4PLVRBA6NLDATJD6E6DLR4/

Norris et al. (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. 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 – by the Electoral Commission in particular – 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%, turnout increased in 2014 for the first time since 2005. This positive trend continued with turnout for the 2017 election (79.8%) and the 2020 election (82%). Turnout rose in 2020 despite the fact that the election had to be postponed due to a COVID-19 lockdown, from 19 September to 17 October 2020. Almost 2 million votes were cast in advance of election day – a significant jump from previous early voting numbers in the 2017 (1.24 million) and 2014 (718,000) elections (New Zealand Herald 2020).

In late 2020, the government responded to a recommendation by the Waitangi Tribunal calling for a removal of the blanket ban on prisoners’ voting rights. The Tribunal found the ban had affected Māori disproportionally (in 2018, Māori were 11.4 times more likely than non-Māori to have been removed from the electoral roll). Under the new legislation, prisoners serving less than three years can vote in the general election (Foon 2020).

Citations:
Foon (2020) “‘Every vote counts’: Prisoner voting rights returned.” RNZ. https://www.rnz.co.nz/news/national/428367/every-vote-counts-prisoner-voting-rights-returned

New Zealand Herald (2020) “Record numbers vote early in 2020 New Zealand election - almost 2 million.” https://www.nzherald.co.nz/nz/record-numbers-vote-early-in-2020-new-zealand-election-almost-2-million/XHBAMERHAXPH4MX5DLDPH3TMMU/

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 ($1,500). 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.

In December 2019, the government introduced legislation that banned foreign donations of over $50 to politicians and tightened disclosure rules for political advertising. The law was passed amid allegations of Chinese interference in New Zealand politics (i.e., in October 2018, Simon Bridges – leader of the National party – was accused of concealing a $100,000 donation from a Chinese businessman with strong links to Beijing). The new laws also require the names and addresses of those funding election advertisements in all mediums to be published, so as to reduce the “avalanche of fake news social media ads” that have marred elections overseas (Roy 2019)

Citations:
Rashbrooke (2017) Bridges Both Ways: Transforming the Openness of New Zealand Government. Institute for Governance and Policy Studies, Victoria University of Wellington.

Roy (2019) “New Zealand bans foreign political donations amid interference concerns.” The Guardian. https://www.theguardian.com/world/2019/dec/03/new-zealand-bans-foreign-political-donations-amid-interference-concerns

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 (New Zealand Parliament n.d.). 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.

New Zealand’s two most recent referendums were held alongside the 2020 general election: on the End of Life Choice Act 2019 (which was passed with 65.1% of voters’ support) and the legalization of recreational cannabis use (which draw 48.4% in support, and was thus unsuccessful). The End of Life Choice Act 2019 gives people with a terminal illness the option of requesting an assisted death if two doctors agree that the person has less than six months to live. Parliament passed the End of Life Choice Act 2019, but the measure had to be passed via referendum in order to take effect. The cannabis referendum asked whether people agreed with the draft Cannabis Legalization and Control Bill, which outlined provisions to legalize and control cannabis for recreational use. The use of a referendum on this issue was the result of the Green Party’s deal to support the Labour government after the election. However, the “Yes” vote did not reach the 50% threshold, and the Labour government has indicated that it intends to respect the outcome of the referendum (MacManus 2020).

Citations:
MacManus (2020) “Referendum results: Cannabis legalisation narrowly loses vote.” Stuff. https://www.stuff.co.nz/national/cannabis-referendum/123249113/referendum-results-cannabis-legalisation-narrowly-loses-vote

New Zealand Parliament (n.d.) What is a citizens-initiated referendum? https://www.parliament.nz/en/get-involved/features/what-is-a-citizens-initiated-referendum/

Access to Information

#16

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
New Zealand performs well in terms of media independence. In the 2021 World Press Freedom Index – published by Reporters Without Borders – New Zealand is ranked eighth, up one place compared to 2020. The report notes that the media’s “independence and pluralism are often undermined by the profit imperative of media groups trying to cut costs to the detriment of good journalism” (Reporters Without Borders 2021). However, the media is considered to be free from political pressure and intervention. This assessment also applies to state-owned broadcast networks: Television New Zealand (TVNZ) and Radio New Zealand (RNZ). Despite being identified as a public broadcaster, TVNZ is fully commercially funded. The question of whether to make TVNZ non-commercial or steer it toward a more public service-oriented role keeps coming up in the political debate. The two largest print and online media providers, NZME and Stuff Ltd., have sought to merge, but this was twice blocked by the Commerce Commission, which cited concerns about the effects on democracy in justifying its decision (Pullar-Strecker 2018). In mid-2020, Stuff was sold by its parent company, Nine Entertainment, to the organization’s management for $1 (Rutherford 2020).

Citations:
Pullar-Strecker (2018) “Court of Appeal explains decision to decline media merger.” Stuff. https://www.stuff.co.nz/business/industries/107378879/court-of-appeal-explains-decision-to-decline-media-merger

Reporters Without Borders (2021) New Zealand: Press freedom threatened by business imperatives. https://rsf.org/en/new-zealand

Rutherford (2020) “Stuff sold for $1 to CEO Sinead Boucher by Nine Entertainment.” New Zealand Herald. https://www.nzherald.co.nz/business/stuff-sold-for-1-to-ceo-sinead-boucher-by-nine-entertainment/WSETW73L7M7VV2FCP4PZ6LCSHY/

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. In the TV segment, competition is mainly between Television New Zealand (TVNZ) – which, despite being publicly owned, is run on a commercial basis – and two international media giants: U.S.-owned MediaWorks and Australian-owned Sky. Media pluralism was further threatened by MediaWorks selling its Three network, as well as the news and current affairs element under the banner of Newshub, to U.S. media company Discovery in 2020, although the news and current affairs programing remained intact (Jennings 2021). In the meantime, the commercial radio market is largely divided up between MediaWorks and New Zealand Media and Entertainment (NZME), with publicly owned and noncommercial Radio New Zealand acting as a third player with a loyal audience. Additional funding for public media is currently in development. Finally, a near-duopoly also exists in the newspaper and magazine publishing industry, where the market is essentially split between NZME and Stuff. While NZME owns the leading daily newspaper, the New Zealand Herald, Stuff controls the country’s second- and third-highest circulation daily newspapers, The Dominion Post and The Press. Stuff, one of New Zealand’s largest media companies, was sold by parent company Nine Entertainment for $1 to its chief executive, former journalist Sinead Boucher. The deal ended years of speculation about the company’s ownership after lengthy attempts by NZME to buy the company were blocked by the Commerce Commission, which had received submissions from a variety of concerned groups and networks in civil society.

There are several online media outlets that provide alternative source of news and information (e.g., The Spinoff, Newsroom, the Conversation and the Guardian New Zealand). These outlets have fewer readers than the major news outlets, but offer critical and evidence-informed analyses that are often reprinted in the mainstream outlets or are taken up by the main three broadcasting actors noted above.

Citations:
Jennings (2021) “Discovery’s plans for TV3 revealed.” Stuff. https://www.stuff.co.nz/business/300335028/discoverys-plans-for-tv3-revealed

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 (OIA) from 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 timeframe 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.

New Zealand’s OIA scores 94 points out of 150 according to the 2020 Global Right to Information (RTI) rating, which puts it ahead of many other OECD countries, including Australia (84) and the United States (83). The RTI concludes that New Zealand’s access-to-information regime “functions better in practice than its legal framework would suggest. The law’s major problems include its limited scope (it does not apply to the legislature, the courts, or some bodies within the executive) and the fact that it allows information to be classified by other laws” (Global Right to Information 2020).

The media continue to demand changes to the OIA. In particular, government agencies have been criticized for taking longer periods of time to respond to information requests than are allowed for by the OIA. The Labour government announced that it was committed to rewriting the OIA; however, a promised review has been repeatedly delayed (Macdonald 2021).

Citations:
Global Right to Information (2020) RTI rating. https://www.rti-rating.org/

Macdonald (2021) “Official Information Act review kicked down the road.” Stuff. https://www.stuff.co.nz/national/politics/124076652/official-information-act-review-kicked-down-the-road

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 2021 Freedom in the World Report – published by the U.S.-based think tank Freedom House – awards New Zealand an almost perfect score of 59/60 on the “civil liberties” dimension (Freedom House 2021).

However, this does not mean that there are no infringements of citizens’ civil rights in New Zealand. For one, 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. In September 2021, following a knife attack carried out by Sri Lankan national that injured seven people, parliament passed into law counterterrorism powers that criminalize the planning of terror attacks and expand the ability for police to conduct warrantless searches. Critics including the Privacy Commissioner raised concerns about the new laws, stressing that “the warrantless search for a very sort of vaguely defined offense can be subject to abuse” (Manch 2021).

In August 2020, the Wellington High Court ruled that the early stages of New Zealand’s level-4 lockdown (nine days between 26 March and 3 April) had been unlawful. While the measure was a “necessary, reasonable and proportionate response” to the pandemic at that time, the requirement was not mandated by law and was contrary to the NZ Bill of Rights Act, the court stated. A law change on 3 April then made the lockdown legal (Mitchell 2020). Similar cases have been taken to the High Court over vaccine mandates for employment (in the case of the police, and in the education and healthcare sectors). In the case of the police, the High Court determined that the government mandate is an unjustified incursion on the Bill of Rights, indicating that the justice system functions as an important institutional check on the executive, especially during times of crisis.

Citations:
Freedom House (2021) Freedom in the World 2021: New Zealand. https://freedomhouse.org/country/new-zealand/freedom-world/2021#CL

Davison (2017) “Spying reforms allowing GCSB to spy on Kiwis pass into law with little opposition.” New Zealand Herald. https://www.nzherald.co.nz/nz/spying-reforms-allowing-gcsb-to-spy-on-kiwis-pass-into-law-with-little-opposition/2BAP2DBBZZTM2V6R7LTT6GBASY/?c_id=280&objectid=11822634

Manch (2021) “Parliament passes counterterrorism laws, criminalizing terror planning and expanding warrantless search powers.” Stuff. https://www.stuff.co.nz/national/politics/126530458/parliament-passes-counterterrorism-laws-criminalising-terror-planning-and-expanding-warrantless-search-powers

Mitchell (2020) “High Court rules some of Covid-19 level 4 lockdown was unlawful.” RNZ. https://bit.ly/35Tg27T

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. In its 2021 Freedom in the World report, U.S.-based think tank Freedom House awarded New Zealand an almost perfect score of 59/60 on the dimension of “civil liberties” (Freedom House 2022). After the right-wing terrorist attack on a mosque in Christchurch in March 2019, the New Zealand government set up a dedicated investigative unit to find and prosecute “hate speech” online. Under existing terrorism legislation, the shooter’s 74-page manifesto was classified as “objectionable,” making it a crime to hold, share or quote from. While critics argue that these steps threaten the freedom of expression, supporters of the government’s actions point to the radicalizing effects of extremist online content (RNZ 2019).

Citations:
Freedom House (2022) Freedom in the World 2022: New Zealand. https://freedomhouse.org/country/new-zealand/freedom-world/2022

RNZ (2019) “Government announces $17 million to target violent extremist content online.” https://www.rnz.co.nz/news/political/400957/government-announces-17-million-to-target-violent-extremist-content-online

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.

What is more, New Zealand has, for a long time, pursued positive discrimination measures to address Māori citizens’ structural disadvantages. The electoral system for parliamentary elections has, since the implementation of the Māori Representation Act in 1867, included Māori electorates specially set up for people of Māori ethnicity or ancestry who choose to place themselves on a separate electoral roll (currently, there are seven Māori electorates). In 1975, the Treaty of Waitangi Act established the Waitangi Tribunal to redress grievances that Māori face as a result of colonization. In particular, the Waitangi Tribunal investigates Māori land claims and comments on government policies that have the potential to affect the Māori population. New Zealand law also imposes Māori quotas in certain areas, such as in fishing and tertiary education.

However, these measures have had little effect, as Māori continue to experience significant disadvantages in a wide range of ways. Compared to Pākehā (New Zealanders of European descent), Māori suffer worse health, have lower education attainments, employment and income, and are more likely to be victims of crime. Māori are also disproportionately represented in the penal system (Walters 2018).

In addition, New Zealand has come under international scrutiny for the human rights situation for the LGBTQI community. In January 2019, the United Nation’s Human Right’s Council highlighted that, in its current state, the Human Rights Act does not explicitly protect people from discrimination on the grounds of gender identity, it only prohibits discrimination on the grounds of sex. The Labour/Green government that took power in 2020 has addressed concerns of the LGBTQI community by introducing a bill to outlaw so-called gay conversion therapy in July 2021, and by passing a law in December 2021 making it easier to change the sex registered on birth certificates (Corlett 2021).

Citations:
Corlett (2021) “New Zealand passes law making it easier to change sex on birth certificates.” The Guardian. https://www.theguardian.com/world/2021/dec/09/new-zealand-passes-law-making-it-easier-to-change-sex-on-birth-certificates

Hurihanganui (2018) “Waitangi Tribunal’s recommendations frequently ignored – UN report.” RNZ https://www.rnz.co.nz/news/te-manu-korihi/354085/waitangi-tribunal-s-recommendations-frequently-ignored-un-report

Murphy (2018) “NZ told to improve human rights of LGBTQI people.” RNZ. https://www.rnz.co.nz/news/political/380687/nz-told-to-improve-human-rights-of-lgbtqi-people

Walters (2018) “Fact check: Disparities between Māori and Pākehā.” Stuff. https://www.stuff.co.nz/national/politics/101231280/fact-check-disparities-between-mori-and-pkeh

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. For example, Freedom House’s 2021 Freedom in the World report awarded New Zealand a perfect score of 4/4 on the rule-of-law dimension (Freedom House 2021).

Citations:
Freedom House (2021) Freedom in the World 2021: New Zealand. https://freedomhouse.org/country/new-zealand/freedom-world/2021

McLean and 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 government, which is very common among Commonwealth countries, 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 perceived to be 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. The 2020 Corruption Perceptions Index published by Transparency International even ranked New Zealand at first place (together with Denmark) in terms of anti-corruption efforts (Transparency International 2020). However, this does not mean that the country is free of corruption. For example, the 2020 Deloitte Bribery and Corruption Survey found that a considerable number of company executives found corruption to be “significant risk” to their organizations (Deloitte 2020). There are also concerns about “revolving door” practices, whereby individuals shift between government positions and private sector jobs, and vice versa (Kuhner 2020).

Citations:
Deloitte (2020) The Deloitte Australia and New Zealand Bribery and Corruption Report 2020. https://www2.deloitte.com/nz/en/pages/risk/articles/bribery-corruption-survey-2020.html

Kuhner (2020) “Reputation vs reality: how vulnerable is New Zealand to systemic corruption?” The Spinoff. https://thespinoff.co.nz/politics/06-03-2020/reputation-vs-reality-how-vulnerable-is-new-zealand-to-systemic-corruption

Transparency International (2020) Corruption Perceptions Index. https://www.transparency.org/en/cpi/2020/index/nzl
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