Alexander Gillespie: Covid 19 coronavirus alert changes present Election 2020 challenges

COMMENT:

Beneath the powerful Covid-19 Public Health Response Act, amendments and/or orders are rolling out of Parliament with speed. From making some people liable for quarantine, through to new orders on what alert level 2 and 3 are meant to look like, our lawmakers have been busy.

Although the Government is currently using friendly language, behind their back they carry a very big stick. This time, the rules around roadblocks, telling businesses to close, and the ability to blanket the country are unambiguous.

The director general of health can even order people to "report for and undergo a medical examination or testing of any kind, and at any place or time, specified and in any specified way or specified circumstances"; while others areas, such as making the use of face-coverings/masks mandatory, are set to expand beyond their current scenarios.

As this possible resurgence of Covid-19 spooks the country, the greatest problem we face now is not the disease, but rather, the end of this parliamentary cycle.

This end produces two challenges. The first is keeping a check and balance on the Government's use of emergency measures. This started with the very useful Epidemic Response Committee, which could examine any matter relating to the Government's management of the Covid-19 epidemic. It was then followed by the Public Health Response Act, which has at is heart, a spirit that requires orders passed to be approved by Parliament. If Parliament is dissolved in preparation for the next election, such counter-weights will disappear.

The second problem is the election itself.

The core challenge here is that democracy is the heart of this country. To make this beat, every New Zealander who is of or over the age of 18 years, has the right to vote in genuine periodic elections of members of the House of Representatives. This right is the cornerstone of our freedoms and the epicentre of our democracy that dates back to the 1688 the Bill of Rights and the obligation that "Parliaments ought to be held frequently".
For us, frequent means very close to every three years there must be a new election.

The way this works is that once the dissolution of Parliament is set, the Prime Minister informs the Governor-General when the election date will be, and that writ then gets locked in.

So, the last election was held on September 23, 2017, and the next one was pencilled in for September 19, 2020. The concreteness in this date is important, so everything from overseas voting through to the establishment of polling stations can be made ready in good order.

Once the date is set, the Electoral Commission and a tightly scripted process take over. Their control is such that the law is even prepared for unforeseen or unavoidable disruptions (such as if the pandemic gets bad again).

Prime Minister Jacinda Ardern during the Covid-19 response update at Parliament. Photo / Mark Mitchell

If this occurs, the Chief Electoral Officer (after consulting the Prime Minister and Leader of the Opposition) can have polling places on polling day adjourned for relatively short periods; or if the disruption looks like it will be ongoing, move to alternative voting processes. For example, they may extend the polling hours, or extend to voters in New Zealand the procedure for the electronic issue of voting papers that is available to voters outside New Zealand.

While this may be news to many Kiwis, our Electoral Commission has already been planning to facilitate voting from places such as rest homes and isolation units. They are also working on plans to do their work within different Covid alert levels.

In short, both the law to ensure our democratic processes continue, and the tools to make it work, even if Covid restrictions escalates, are ready.

Despite this readiness, the Prime Minister has hit pause, and decided not to dissolve Parliament (and thus set the new election date) just yet. She will be aware that many other countries have struggled with either postponement, and/or finding other ways to deliver democratic processes that are pandemic-safe.

In our case, the pause can only last for a very short period. This is because New Zealand law takes the three years of political tenure rule so seriously it is one of few pieces of our legal system which is entrenched. It can only be changed if 75 per cent of members of Parliament agree.

However, in these strange times, it seems that the Leader of the Opposition would probably help the Prime Minister with the numbers, to delay the election. Whether this offer is based on what is best for the country, or best for own political party, is a matter of debate.

The problem the Prime Minister faces with this offer is threefold.

First, even if the election is delayed, no-one knows when it will be safe to hold. Two, undue delays to democracy can be just as damaging as lack of ideal participation. Three, unless we move into an agreed power-sharing arrangement, a prolonged interregnum will not provide the stability that the country needs moving forward.

• Alexander Gillespie is a Professor of Law at the University of Waikato.