Legal Beagle by Graeme Edgeler

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Draft Submission: COVID-19 Response (Management Measures) Legislation Bill

Late last week, the Government introduced two further bills around the COVID-19 response, one the COVID-19 Response (Management Measures) Legislation Bill has a very short select committee process, which has meant I haven't been able to consider it fully. There was one matter I saw for concern, which is detailed in my draft submission below. Submissions are due tomorrow, so feel free to suggest amendments, or point out typos, etc.

This one is an odd one: it expands the power of the Government to delay local elections. The problem is that Parliament already did this in 2020, in earlier COVID response legislation and its first attempt had better safeguards. There's no mention of that law in any of the public documents (there aren't many) around this, almost as if the Department has forgotten it exists.

Submission below. Comments welcome. (Please ignore the numbering issues, it all looks fine in the CMS and the word doc I'm working in)

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The Finance and Expenditure Committee

COVID-19 Response (Management Measures) Legislation Bill

Submission of Graeme Edgeler

  1. This submission is made by Graeme Edgeler. I am a Wellington barrister with an interest in electoral law.
  2. I regret that I have not had the opportunity to consider the whole bill given the time made available for submissions, but my brief consideration of it raises concerns about one aspect of the bill: the proposed amendments to the Local Electoral Act 2001.
  1. This bill is a COVID-19 Response legislation bill. While I anticipate all members will accept that the response to COVID-19 might give rise to a need to adjourn a local election (for example due to a local authority being under level 3 or level 4 restrictions, limiting campaigning, voting and enrolment), this has in fact already been addressed: the COVID-19 Response (Further Management Measures) Legislation Act 2020 created COVID-related local election adjournment powers in the Local Electoral Act.
  2. No explanation has been given why these pre-existing COVID adjournment powers are considered insufficient. Nothing in the publicly available material around the bill seems to suggest that the Department even knows they exist.
  3. I am also concerned that an amendment of permanent effect, not limited to responding to the COVID-19 epidemic, has been included in an urgent COVID-19 Response legislation bill.
  4. I recommend that the Committee seek advice on the amendments to the Local Electoral Act and give consideration to:
    • 1. Applying the amendments to the 2022 local elections only;
    • 2. Limiting the effect of the amendments to the COVID-19 epidemic;
    • 3. Consider whether additional safeguards should be added, given the additional powers being given to the Minister.
  5. In particular, I propose that if the Committee considers there are deficiencies in the way the Local Electoral Act permits the Government to respond to the COVID-19 epidemic, it would be better to amend the adjournment power in section 73AB of the Local Electoral Act, rather than that in section 73A.

Adjournment of Local Elections in Emergencies

  1. The Local Electoral Act 2001 contains three powers to adjourn local elections:
    • 1. Section 73 gives a power to an electoral officer to adjourn (ie delay) the election for which they are responsible in the event of an emergency, such as a natural disaster, or adverse weather conditions. Adjournments are for a maximum of 14 days each, but repeated adjournments may be made.
    • 2. Section 73A (that proposed to be amended by the bill) covers situations where an emergency may prevent election processes being run fairly, and provides for an order-in-council to adjourn voting in local elections for up to six weeks if necessary. The section appears to apply a limit of one such adjournment.
    • 3. Section 73AB provides for an order-in-council process to adjourn elections due to COVID-19. The maximum length of an adjournment is six weeks, but subsequent orders, further delaying the election for up to six weeks at a time are permitted.
  1. Clause 4 of this bill would amend the general adjournment power in section 73A. The amendment is not limited to the responding to COVID-19 and unlike most of the other amendments proposed by this bill, is not a one-off:
    • 1. It does not apply only to the 2022 local elections.
    • 2. The changes it makes are permanent.
    • 3. The changes apply to all circumstances in which the section 73A power may be used, not just COVID-19.
    • 4. The only explanation given in the bill (no regulatory impact statement appears to be available) is that it will “provide more flexibility to delay triennial local elections..”.
  2. The explanation in the legislative statement is a little longer, but does not explain the rationale for this particular change:

Local Electoral Act 2001

The next triennial local elections are scheduled to take place on 8 October 2022. The Minister of Local Government proposes amending section 73A of the Local Electoral Act 2001 to extend the ability for the Governor-General, by Order in Council, to specify a later date or dates for key points in the process for triennial local elections in an emergency situation.

Currently section 73A of the Local Electoral Act 2001 only allows for an Order in Council to move key election dates up to 6 weeks after the date that would have otherwise applied. The Bill will allow one key election date dates to be extended further by up to 6 weeks at a time.

  1. It is true that the adjournment power in section 73A only permits one six-week adjournment (which the bill would change), but the adjournment power in section 73AB of the Local Electoral Act already allows for repeated[1] six-week adjournments if the reason for the adjournment is COVID-19. Given this, it is not clear why this amendment it thought to be necessary.
  2. It may be that the section 73A power, which applies, for example, during natural disasters, would be improved by allowing repeated adjournments. But such a change should be made in the ordinary way, following the ordinary regulatory assessment process, and not urgently, and in an un-related bill.

Any Concerns Should be Met by an Amendment to Section 73AB

  1. It is not clear what non-epidemic concerns have led to the proposal to amend the adjournment power in section 73A, rather than 73AB. But if the concerns are around COVID-19, then the bill should amend section 73AB instead. That section is headed “Adjournment of electoral processes and conduct of polls while epidemic notice in force for COVID-19”.
  1. The adjournment power in Section 73AB has several advantages over that in section 73A, in both its current and proposed forms. In particular, in dealing with COVID-19, the power imposes additional safeguards:
    • 1. It requires a notice under the Epidemic Preparedness Act to be in force (the bill would add a definition of emergency to include an epidemic, but would not actually require epidemic powers to be invoked).
    • 2. It is limited to the COVID-19 response, and the additional powers it contains expire[2] when the epidemic ends.
  2. With respect to COVID-19 related adjournments, section 73AB already provides the extra flexibility (repeated six-week adjournments) that is mentioned in the legislative statement as being the reason for the proposed amendment.
  3. If there are concerns that section 73AB will not cover the field, officials should elaborate on those concerns, and propose amendments to them to rectify the situation. There is no justification for addressing non-COVID concerns in an urgent COVID response bill, least of all one allowing only a few days for submissions.

Possible Amendments to Clause 4

  1. If the decision is made that the COVID adjournment powers are to be moved into section 73A, then the protections contained in section 73AB should be carried over:
    • 1. The additional powers should be limited to the COVID-19 response, and to the 2022 local elections.
    • 2. Use of the powers should be premised on the existence of an epidemic notice under the Epidemic Preparedness Act.
    • 3. The additional powers should have a sunset clause.

Conclusion

  1. I regret that I lack the legal knowledge to fully vet the remainder of the Bill in the time available, but having considered this matter, bring my concerns to you.
  1. Parliament has already given the Government powers to respond to the COVID-19 epidemic in section 73AB of the Local Electoral Act. No explanation has been given as to why those adjournment powers are deficient. For example, they already permit the flexibility of repeated six-week adjournments the Government says it need.
  2. Any concerns with this power should be addressed by amendment to section 73AB, not by making permanent amendments to section 73A, especially when those amendments are not limited to the COVID response.
  3. If there are non-COVID concerns behind the proposed amendment, then the Committee should recommend the amendments be removed from the bill, with the government advancing any desired changes them in the ordinary way and not as part of an urgent COVID response bill.
  4. I look forward to speaking to the Committee if time is available.

 

 

Graeme Edgeler

[1]     See Local Electoral Act s 73AB(10).

[2]     Local Electoral Act, s 73AC(1).

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