Justice Minister Paul Goldsmith. Photo: RNZ / REECE BAKER
The government is moving to strengthen the offence of treating, by creating a buffer zone around polling stations where free food, drink and entertainment is banned.
It is a move officials said was "blunt" and "superficial", but would make it more straightforward to identify offending.
Treating is the practice of influencing a voter by providing them with free food, drink, or entertainment. It is already an offence, but the law is poorly understood and rarely prosecuted.
New Zealand has strict rules in place aimed at preventing voters from being unduly influenced.
Election advertising or campaigning is not permitted within 10 metres of a voting place during advanced voting, and not at all on election day itself.
It means voters can head to the ballot without someone else trying to change their mind.
But the line between hospitality and influencing is where the confusion comes in, and what the government is hoping to clear up.
"There has been some confusion in the past around what is and isn't treating. This will make the rules crystal clear," Justice Minister Paul Goldsmith said.
Rather than clarify what is or is not treating - or whether it amounts to corrupt intent - the government has instead established a new offence, creating a 100-metre buffer around polling stations.
Within that buffer, free food, drink and entertainment will not be allowed, with a maximum penalty of $10,000.
Not the preferred option
In a Regulatory Impact Statement (RIS), Ministry of Justice officials said controlled areas around voting places would make it more straightforward to identify and prosecute offending and was more readily enforceable than the status quo.
"The offence will not require that a person intends to corruptly influence an elector. Instead it will only require that they knowingly provided food, drink and entertainment within the controlled area," they said.
But it was not their preferred option.
"A key drawback of this option is that it is a blunt tool which does not exclusively capture harmful or corrupt behaviour. It draws a superficial line around voting places which may be arbitrary if the influencing behaviour occurs just outside the controlled area."
In its inquiry into the 2023 election, the Justice Committee heard concerns from submitters that there may have been breaches of the treating rules at Manurewa Marae.
The marae was used as a polling booth at the 2023 election. The marae's then-chief executive, the late Takutai Tarsh Kemp, won the Tāmaki Makaurau seat that year.
The Electoral Commission had looked into complaints about the provision of food at the marae, and found it did not meet the test for treating.
Photo: RNZ / Cole Eastham-Farrelly
University of Otago law professor Andrew Geddis said this had likely influenced the government's decision to strengthen the offence.
"Because of concerns about how that particular polling place was operating, they've decided to put in this law that says if you're basically trying to do something nice for voters within 100 metres of a polling place, that will become an offence," he said.
"There's a lot of reasons why you might want to have things like free barbecues, someone on guitar singing, making it more of a community, communal experience. Because that actually might get people to engage with the electoral process more.
"So I do wonder if this is another example of where a problem arose, and in response to that a hammer has been taken out to smash the walnut, and we end up overreacting."
Manaakitanga concerns
Officials recommended clarifying the law to make it easier to understand and more enforceable, as well as a lower intent threshold and penalty.
"A lower threshold would make a clear connection between the incentive given and the outcome sought by providing it. This option seeks to make it clearer that genuine intent is required to improperly influence a voter, and this is different to customary practices such as manaakitanga."
The controlled areas option was seen as having the potential to have a disproportionate effect on voting places that serve Māori communities.
"It is consistent with the practice of manaakitanga to welcome and show appreciation for people with food, drink, and/or entertainment. This option would prohibit and criminalise these cultural practices in the areas around voting places."
The ministry's preferred option was to amend the bribery offence to prohibit the use of food, drink or entertainment.
"Treating is similar to bribery in the sense that an incentive is provided with the intention of procuring a specific outcome. The key difference is the incentive that is offered - for bribery, it is something of pecuniary value, and for treating it is food, drink, or entertainment. The purpose of combining these into a single offence is to remove the distinction to make it easier to understand and apply."
Under this option, officials said it was unlikely manaakitanga would be inappropriately captured.
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