New Zealand Flag Referendums Bill

We come now to the debate on Part 2 of the New Zealand Flag Referendums Bill. Members will find, for their interest, that Part 2 is about the conducting of the referendums themselves. It covers such things as the processing of voting papers, informal voting papers, the appointment of electoral officers, and bribery of persons at any time. We have had a wide-ranging, colourful, and dramatic debate on Part 1. Part 2 is relatively narrow. It also contains though, of course, Supplementary Order Paper 102 in the name of Jacinda Ardern. I ask members to stick to the parameters of Part 2, and to try to be novel and innovative to keep us all awake.

Although, as you have pointed out, there is a lot of detail in Part 2, this is by far the most substantive part of the bill, so I certainly have an expectation that there will be a wide range of contributions from this side of the Chamber to the substance of this part. I want to start at the top of Part 2, because, as you pointed out, Mr Chair, I do indeed have a Supplementary Order Paper in this part and it does apply to the very beginning. Under clause 10, “Subject of referendums”, it sets out in subclause (1) that: “During the voting period for the first flag referendum, a referendum of electors must be held on the question set out in the voting paper in Schedule 1.” Schedule 1 then sets out that voting paper. Subclause (2) then states: “During the voting period for the second flag referendum, a referendum of electors must be held”. My Supplementary Order Paper 102 disrupts that order of events by inserting a new clause, clause 10A. Clause 10A, if passed—which I implore this Chamber to support for reasons I will outline—states: “Fifty percent of electors must return votes. Despite section 10(2), the second flag referendum may take place only if more than 50% of electors return a valid voting paper to the Returning Officer in the first flag referendum.” Obviously, that Supplementary Order Paper makes it very clear that if, after the first round, regardless of what is returned in that first round, regardless of whether or not people have ticked all of their options and sent it back, if less than 50 percent of—

💬 Hon Ruth Dyson: Fewer.

Thank you. If fewer than 50 percent of those who are eligible to participate in that referendum return their voting papers, then the second referendum would not take place.

Let us run through the rationale for why that might be. Well, obviously, if something that is as constitutionally important—as the Prime Minister claimed in question time—as this flag referendum is to be considered valid amongst the New Zealand population and, indeed, amongst members of Parliament, surely we would want at least 50 percent of the population to participate in that vote. You could argue that having a clause like this, if people wanted to participate, would make people think: “Right. If I want to have my say in this, and I really want to see it changed, then I have got to get out there.” So what could the Government possibly be afraid of? If it genuinely believes that every New Zealander wants to see change, as it seems to believe, because it is so unwilling to allow a simple yes/no vote first—if it is so convinced that the New Zealand public wants change and, indeed, wants this in the first place—then surely it would be willing to support Supplementary Order Paper 102, which puts that to the test. If you were so sure that everyone would participate you would have no problem with a Supplementary Order Paper like this one.

I ask the Government to back the decision that you have made to put this to the public. Back the fact that you believe that 50 percent of the population will come out. The bonus of that then becomes that if there is a 50 percent turnout, there is no problem. Your bill proceeds as planned. If they do not, we do not run the risk of having a referendum that does not have the mandate of the public and we do not waste another $6 million by holding round two. Win-win. So I challenge the Government: if Government members tonight do not support this Supplementary Order Paper, I will take that as a very clear indication that they right now actually do not believe that the New Zealand public will participate in this referendum, because if you did you would have no qualms supporting it. You would have no qualms supporting that little backstop measure that says that if the public will not come out, let us not waste our money on round two—let us not waste our money. Let us not waste our money, and let us not bring in a flag that people are not willing to participate in a debate over.

We have heard some defensiveness about the level of participation so far. Maggie Barry stood up in the House today and said that there was a fantastic national conversation—very defensive about that. I can see why, because her department has spent a considerable amount of money on this. The Ministry for Culture and Heritage is a part of this legislation—the same department that is facing a $3 million cut in funding, and so I can see why she would want to push the fact that this is a national conversation. Ultimately, put your money where your mouth is. That is what I am arguing with this Supplementary Order Paper. So I look forward to a member on that side of the Chamber giving me a rational set of reasons why they would not be willing to have that test in there. We have put in other tests before. We have tried to alter the structure of the voting papers. The Government has not bought in to that; I am hoping that at least it will not be afraid to support this Supplementary Order Paper.

Moving down through Part 2 I want to come, then, to clause 13. Clause 13 sets out the process with the alternative flag designs. Clause 13(1) sets out the way that “The Governor-General must, by Order in Council made on the recommendation of the Minister, at least 60 days before the commencement of the voting period … prescribe 4 alternative flag designs to appear on the voting paper.” Let us be really clear. There were not always just four alternatives as a potential way of structuring this ballot. Officials put forward the idea of having a few more flag design options. In fact, seven options were proposed for the way that this referendum could be set out. As much as the Government has come in behind its option and said that that was the primary one, actually, some of the others canvassed were tested against how complex they would be and how difficult they would be to manage. Most of them came out looking OK as alternative options, but for this one we have gone with four options prescribed. The public gets 60 days to see them.

What is unfortunate about this is that although it is not legislated in here specifically, the Minister is the one referring the alternative flag designs to the Governor-General but, of course, those recommendations are coming from the panel. If you are not familiar with the panel—I do not blame you—I point out that there are no designers on the panel. One might think that if you were going to be choosing alternative flag options you would have someone who had some background in design—no. They are being paid half a million as a board to exist, and I would call it a small number when you look at the amount they are costing us, such as $200,000 to hold public meetings with this panel, which 26 people, on average, are showing up to. Even though the legislation sets out that it is the Governor-General on the Minister’s recommendation who prescribes alternative designs, it is the board that is sitting behind that decision, and I wanted to make that point very clear.

I come to clause 18, “Rolls of electors”. There is a minor amendment in this clause, which has been made by the select committee. It sets out that there is an exemption here for the second referendum that would usually apply to others, and that is for the usual requirement to allow the inspection of the rolls. That will not happen for the second referendum because there is such a short time frame between the two. That is a common-sense amendment, I think you will agree, demonstrating where the different costs come in by holding two referendums, because there is a considerable logistical process that exists behind each. There is a small cost saving there though, none the less. But it is indicative.

One of the more significant issues that we debated on the Justice and Electoral Committee was how we treat spending limits and whether or not you have to have promoter statements. The recommendation of the select committee was based on the discussion that was had by the parliamentary group that was considering the way these referendums would be held. The decision was generally made that a spending limit in this case was not required because the view was that those who come in as parties to this debate would not necessarily be of particular political persuasions. If someone wanted to spend their personal millions promoting a flag, so be it. If Gareth Morgan wants to spend $20,000 on a prize for a flag, so be it. But I want it to be stated clearly in Hansard, for the record—let it stand—that the absence of a spending limit in these referendums is not in any way indicative of the general view of the committee that that needs to apply to any other referendum or election. These are very special circumstances where it was deemed that special interests would not really be played out via paid advertising and registered promoters in these particular circumstances. But we need to be really, really clear on that. We also need to be clear that you cannot use parliamentary funding to promote a particular alternative. That is very clearly stipulated. So promoting the referendums is fine; promoting an alternative is not OK under parliamentary spending rules or the rules set out in this bill.

I want to speak on clauses 10, 13, and 27 in Part 2. As we know, clause 10 is actually the crux of the whole bill, because that is the clause that provides for the question in the first flag referendum. That question—which appears in schedule 1—is: “If the New Zealand flag changes, which flag would you prefer?”. It is a simple question, but it is problematic and it is poorly drafted. It suggests, in the first few words, that the flag will change, and, of course, that is not necessarily the case. So the question should never have been drafted in that way, and it should never have referred to any suggestion that the flag will change. The last few words are the only ones that are relevant: “which flag would you prefer?”. The first few words are superfluous and should be deleted, but the real point is that this constitutes, in my mind, undue influence and bad practice if not gerrymandering. I say that quite seriously; I am not just trying to make a political point. It is actually a badly drafted question and it should not proceed in that way.

New Zealand First, of course, says that the question should be: “Do you want a flag change?”—period. But we know that that is going to be rejected. Nevertheless, even as it is, there is a glaring defect in the currently provided for question, and that is that the current flag is not there at all amongst those that people can select. It should be there. It should be there for comparison purposes, so that people can see four options plus the New Zealand flag. Why not do that? It should do that. And it should be there as a choice also, because without the New Zealand flag being there at all, there is no genuine referendum in the first referendum process. It would be easy to simply delete the words “If the New Zealand flag changes,” and add the current flag as an option. If you do that, of course, you do not have to have the second referendum at all. People can look at the four options and the New Zealand flag and say “Well, actually, I just want the New Zealand flag.” and vote for that. Or if they wish to, of course, they can vote for one of the others. So I do not understand why we have to go through this convoluted, difficult, complicated, and extremely expensive process of having two referendums when we could do it all, under clause 10, in one hit. We could do it fairly. We could do it without any undue influence, without any bad practice, and in a way that everyone could participate in.

The reason why this is such a glaring defect is that according to the polls, there will be probably more than 70 percent of the population, actually, who do not want to take part in the first referendum because they do not want any of the four options. So how on earth can they participate in the first flag referendum when it does not offer them any acceptable flag—not one? I believe that the vast majority of people are in that category. The result of this is going to be a very, very poor turnout and, in addition, a huge number of spoiled votes. Is that an efficient and proper way for a country like this to proceed on something as important as choosing a new flag—if, indeed, that is what we want to do at all? I think that this is a very, very badly drafted clause and a badly conceived referendum process.

I talk about clause 14 and I particularly refer to subclause (3), which is the subclause that says: “The Governor-General must, by Order in Council made on the recommendation of the Minister, at least 28 days before the commencement of the voting period for the second flag referendum, prescribe an official description of the current New Zealand Flag, to be used …”. It says: “prescribe an official description of the current New Zealand Flag”—like we do not know what it is already. I mean, for goodness’ sake. We know what the current flag is. Nevertheless, there does need to be some description, but the description should not be: “This is what it looks like. It’s got the Union Jack there, it’s got stars there, and so on.” That is not what we want. What we do need in this clause is some information about the history and the heritage of the current flag, because contrary to what Nikki Kaye says, this flag actually does represent the culture.

I raise a point of order, Mr Chairperson. I am just seeking your advice, Mr Chair. We have just been informed that the ACT Party member was not on site when the last vote was cast. I just seek your advice and to check whether or not he had permission or whether the Speaker gave him permission to be off site, and whether they were able to cast that vote, given he was not on the precinct.

I have the proxy vote for the ACT Party on that issue here with me. I have absolute confidence in the honour of my colleague David Seymour to afford himself leave as appropriate and to be on the premises when he has not. So I am taking personal exception to my word as a whip being taken into question. [Interruption]

No, I do not need any further advice in respect of this matter. A member can be off site if he has leave and if he has supplied a proxy vote. The vote has already been taken. You cannot call for a personal vote this far down the track, as far as I am aware, although I am prepared to take advice on that. As far as process would have it, the vote has been called. The vote has been taken. A personal vote was not called for at that time, and there is not any reason to believe that should there be a personal vote that would affect the outcome of the vote, because it was 63 to 58. Even a sole member of a party has the complete right to be off site if he has supplied a proxy.

I think there is one further point. The member certainly has the ability to supply a proxy and be off site if he has leave. I think that is the question that was being asked by my colleague—an assurance from the Government whips that the member who was at the hotel opposite has leave.

Well, in respect of that, the Government whip is not responsible for giving leave to Mr Seymour. But he has a proxy, which indicates that Mr Seymour knows what he is doing because he has supplied a proxy in expectation of not being in the Chamber at the time. In any event, the call around a personal vote is the expectation that a personal vote would change the outcome of that vote, and it clearly would not, because the vote was 63 to 58.

I raise a point of order, Mr Chairperson. Sorry, this is just a point of clarification as a new member. In referring to the absence of a specific member, would that be out of order in this particular circumstance? [Interruption]

I do not need any assistance in respect of that. Obviously, the statement was made in respect of seeking clarification around a personal vote, and I suggest that we move on with the debate.

I raise a point of order, Mr Chairperson. I am just going to refer to Standing Order 155(4). Basically, it says that he needs to have leave. If he is giving his proxy, he has to have sought leave, otherwise he has to be on the precinct.

The point is that he does not need to have leave from the National Party, so you cannot expect the chief Government whip to know whether or not he has leave. The fact is that he has supplied a proxy vote to the National Party as part of an arrangement that they have. I do not see that there is any point in continuing with this level of points of order in respect of this vote.

The member who has just returned to his seat, Denis O’Rourke, raises a couple of issues that I thought needed to be addressed. The first is that, as he rightly says, the current flag is not one of the four options that will be the subject of the first referendum. He is absolutely right about that. I guess that comes down to the very issue that we are debating tonight—that is, what the best process is for this New Zealand Flag Referendums Bill. And on that point turns quite a bit of the debate, because there are some in the Committee who say that it should be a simple run-off yes/no, and then there are others in the Committee—and the Government is of this opinion—who say “Yes, we do have a yes/no vote in this referendum.” and that comes in the second question, once the New Zealand public has had a chance to evaluate and to choose one of the four potential fresh flags that have been submitted by the New Zealand public.

My view is that to put in the current flag would certainly muddy the waters on two counts. One of those is that it would not be a fair comparison between the three, I presume, new alternatives. So that is confusing in itself. And who is to say that people will recognise the New Zealand flag on that voting paper, anyway? Because one of the problems with the current flag is that people get confused about it and do not recognise it. Is it the New Zealand flag? Is it the Australian flag? I think that is a valid point. If you have a look at the New Zealand First benches, resplendent as they are, even those members do not know which flag is the New Zealand flag. The only way that they do know which flag is the New Zealand flag is to have it written on the flags themselves, which are decorating the fronts of their boxes. I think that is a point well made by my colleague Jono Naylor.

I think that Labour members are pretty confused about this process overall, if you do not mind my saying so, and that brings me to the contribution of Jacinda Ardern. Excellent though it was, it showed a very high level of confusion by Labour over just what its position on this debate is. So if I turn to Labour’s policy, which it proudly went to the electorate on at the last election and that still remains on its website, we have the New Zealand flag. If you will permit me, this is good stuff, so I am going to—

The CHAIRPERSON (Hon Chester Borrows): As long as it applies to Part 2.

Yes, thank you. I am speaking to Part 2 of the bill and also referencing the contributions of previous speakers.

💬 Stuart Nash: What clause?

Clause 18 in Part 2, which describes the two referenda: the first one and the second one. I am touching on that. I will just read out Labour’s policy, because it is good stuff and it is worth reading. Labour believes that the time has come for a change and that it is right for the issue to be put to the public. “I would however support the ability of the RSA”—

💬 Stuart Nash: I raise a point of order, Mr Chairperson. You have yourself said that this is a wide-ranging debate, etc., but clause 18, which the member has referred to, never mentions Labour Party policy in any way, shape, or form.

The CHAIRPERSON (Hon Chester Borrows): I take the member’s point that it is fairly tenuous. I must say that this is probably about the sixth time that I have heard Labour Party policy read out in the course of this debate. I would urge the member to speak to Part 2.

Thank you for your advice, Mr Chair. I do appreciate it. I am referring generally to clause 19, “Who may vote”; clause 20, “Electoral systems for referendums”; and clause 21, but perhaps not touching on clause 22, which is around voting papers, which, of course, is the method of the referendum. So I am speaking directly to the referendum here.

I will just finish off with the Labour Party policy that is still on its website and that does bear reading again because it is still up on the website. What it seems to me, and, in fact, what it did say to the public of New Zealand, is that the Labour Party is supporting a referendum on this issue. What Labour members need to stand up and explain to the Committee is if they are—

There are times in this Chamber when I despair, and listening to that last member, Jacqui Dean, is one of those times—the fact that someone could chair a select committee and not have the ability to do 5 minutes on the broadest debate on the bill. This Part 2 includes “Subpart 1—Referendums on New Zealand flag”, and we will have some speakers on that. It also includes “Subpart 2—Officials”, which concerns the officials who are involved. I am going to reflect on the appropriateness of the behaviour of some of the officials as we get further into the debate. Subpart 3 covers the rolls of electors and whether we have one roll or two rolls, and the interrelationship with the local body elections that are involved in the same year. The conduct of the referendums is in Subpart 4, and the application for an inquiry into the conduct of referendums in Subpart 5.

I have got only one question on Subpart 5, but I have got multiple questions on other subparts. Why should the application be allowed to be made only in Wellington? Why should an application for an inquiry into the conduct of a referendum be allowed to be made only in the High Court in Wellington? What is fair about that? I know the Government is into closing courts all the way around the country, but why does it say that someone who lives in Auckland, someone who lives in Rotorua—do they have a High Court in Whangarei? Probably not, but certainly they do in Hamilton, Dunedin, and Christchurch. Why should someone not be allowed, under Subpart 5, to make an application for an inquiry in one of those courts? I would be interested in the Minister’s comments.

There is Subpart 6, which members on this side will get back to, and also Subpart 7, which has to do with advertising. I say that I was pretty extensively consulted on the question of advertising, especially on the spending limits, by my colleagues who sat on the Justice and Electoral Committee. Frankly, it was a fine call around whether or not there should be limits. But the Labour Party came down, on balance and only just, on the side of having a bit of open slather there. So if the RSA wants to spend quite a lot of money on defending the current flag, then that is OK. Part of the problem, of course, is that John Key wants to spend a fortune on advertising the four alternatives that are going to go up. He wants to spend nothing of taxpayers’ money on advertising the current flag. We will get back to that.

Then, of course, within this very broad part of the bill are the schedules. The schedules are where some of the guts of the legislation is. A copy of the ballot paper for the first referendum is in schedule 1. Have we got that right, or not? What is the system of randomisation within that? There is quite a big debate to be had, I think, about whether it is better to be consistent or randomised within that. In respect of the copy of the ballot paper for the second referendum—and I would be interested in the Minister’s comments, because I have not quite caught up with that one—is that randomised as well? Are the current flag and the alternative flag going to be alternated within that ballot paper, or not? If so, what are the reasons for that?

The copies of the various forms relating to the process are in schedule 3 of the bill. I want to check my understanding—a nod would do, Mr Chairperson—that schedule 3 and schedule 4 are in fact part of this debate and not part of the later debates. Am I correct?

The CHAIRPERSON (Hon Chester Borrows): Yes.

Yes, I am correct. Thank you, Mr Chairman. As I said at the beginning, this is therefore the area where the Labour Party would like to focus most of the debate because it is, as I say, the substantive part of it.

One of the questions I would like to ask goes to the officials who are involved with this particular piece of legislation and what appears to be their prejudice from as early as the end of last year and the beginning of this year, as to the format of the referendum and the spending that was going to be done on it. Well in advance of any budget approval for the referendum, well in advance of any legislation being passed, officials, especially from the Electoral Commission but also from the Ministry of Justice, were showing their prejudice as to the approach to be taken. If that prejudgment was as a result of direction and it was from Ministry of Justice officials, that is fine. Those officials can be directed; they are part of a ministry. But it appeared to me, sitting on the cross-party committee, that, in fact, it was the Electoral Commission officials who had been the subject of direction and prejudice. If the Electoral Commission officials had been the subject of direction or had shown a party political bias to support the Prime Minister, then those officials should not be in their jobs.

The CHAIRPERSON (Hon Chester Borrows): Order! I just wonder whether the member would reflect a little bit on what he is saying and the allegations he is making around the partiality of officials employed as public servants, in respect of this. It is not easy for them to be able to speak in response to that. I just ask him to be a little measured in his speech.

I have thought carefully about what I am saying. I understand the fact that the officials themselves do not have a response available to them. The State Services Commissioner does respond on behalf of State servants, if he thinks it is appropriate. But I say absolutely, as a member of the committee, that there was predetermination from officials at that committee, before members of the cross-party committee had come to any consensus at all. We were told that the process was so far down the track in December and January that we did not have the ability to change it. We were told what the budget was to be. The very deliberate point that I am making is that if these smirking officials from the Ministry of Justice were involved in it and were subject to direction, then, in fact, I understand that, and we will be looking for the direction amongst the papers, because that sort of direction, of course, would have to be a written direction.

But as far as the Electoral Commission officials are concerned, there is no ability for a Minister to direct them, and if they have shown prejudice to follow, effectively, a direction of the Prime Minister’s without proper authority, then, in fact, it is my submission that that organisation is the wrong organisation to run a fair referendum on this process. I am very sad to say that, because we have had a history in New Zealand of people from the Electoral Commission and people involved in elections being beyond reproach. Sometimes I think they spend too much. Sometimes I have doubts about their judgments around interpretations of particular pieces of legislation, but I think they do their jobs honestly, fairly, and without prejudice. I am not convinced that that has occurred in this process. I used to be a State services Minister. I take right to heart the importance of defending public and State services. I think it is something that is really important because they have got to work from Government to Government. But in this particular case, where we have this particular issue, I think it would ill behove me not to raise the matter in the Committee so that members are generally aware.

I do look forward to Jonathan Young coming to the Committee and taking a call. I had an email from Jonathan Young yesterday complaining about the fact that I had indicated that the processes in the committee did not go that well. He said he did not have the ability to respond. Well, he has the ability to respond now, and I challenge him—

I was up like a rocket. Thank you, Mr Chair—I appreciate this call. It is the quick or the dead around here this evening. Welcome back after a great break.

I am here to talk about Part 2—provisions relating to the referendum—and specifically on clauses 10, 11, 13, and, if I have got time, I might even get to clause 20. I would just like to start by talking about Jacqui Dean, who made some pretty bold statements around the New Zealand flag versus the Australian flag. I have to say that New Zealand did have its flag before Australia, but if the Australians want to change their flag because they are getting confused with which is their flag and where it sits, then let them change it. It sounds likely that they have got more support in their country for breaking away and becoming a republic than we have here in New Zealand at this current stage.

Clause 10 talks about the subject of referendums. We are talking about Supplementary Order Paper 102, which, I think, in light of what is going on here today, New Zealand First will find itself supporting. The simple fact is that it says in Supplementary Order Paper 102 that 50 percent of electors must return votes. If they do not return those votes then the second referendum will be null and void. I think that is going to be a very strong indication for this Government, particularly, from New Zealanders suggesting that they do not actually want this referendum. The money would certainly be better spent elsewhere in our communities than just, for the sake given, on having that second referendum, at the cost of some $7 million to $9 million.

We move on to clause 11, which is about the appointment of dates for the referendum. Just quickly, it is talking about getting this bill through quite quickly so that the Government can be given 90 days for the referendum to take place. After that first referendum there is another 90 days until the second referendum can take place, which would probably make it around about January or February before we could actually get it under way and implement things in relation to this bill.

I think the timing of this is absolutely pertinent. When we are talking about the 100-year commemorations of the landing at Gallipoli—and we have got, of course, the World War I commemorations—the timing of this, let alone the fact that New Zealand First strongly opposes this referendum being held in the first place, is absolutely inappropriate. So we would question that and its part in that regard.

I would now like to talk about clause 13, “Alternative flag designs”. I find it difficult to come to the conclusion that a small group of members from this Committee can sit around the table and consider the 10,000-odd flags that have been put before them—and clearly there are a few there that you can just look at in a second and put aside—and whittle that number down to just four. That, to me, is undemocratic in itself—that you are allowing a select, small group of elected members to justify their reasoning for putting forward what they think is the right design.

We heard from the Prime Minister today about the things that he holds as reference points—the silver fern; it is on this, and it is on that. Well, that is just his opinion. When you have a very small group of people making a decision for a very large group of people, I have some concern with that.

It does bring me to this fantastic competition that Gareth Morgan recently held. I do not necessarily think that this flag that I am holding up is a particularly great flag option, but I do have to ask the question whether Gareth Morgan is a New Zealand First supporter, because it does look like Labour on the left, National on the right, and of course New Zealand First coming right up the middle, and I do quite like that idea. I cannot take that flag seriously, in all seriousness. I am not trying to make a mockery of this process, but the reality is that we are going to get some weird and wonderful designs out there, and who is to say that we have the choice as members of Parliament to make that decision for the wider community. I just want to touch again, very strongly, on Supplementary Order Paper 102, which would stop the second referendum if we do not have 50 percent or more votes returned that are not ruined.

We now turn the page, and we are on to clause 20, “Electoral systems for referendums”. The first referendum is conducted in accordance with the preferential voting system that would, of course, allow the voters—

Stuart Nash.

💬 Grant Robertson: Good choice.

Thank you very much, Mr Robertson. In the Committee stage of the New Zealand Flag Referendums Bill I am quite keen to talk to Subpart 1 of Part 2, “Referendums on New Zealand flag”. I agree with one of the earlier speakers when we talked about schedule 1, the voting paper for the first flag referendum, and the question asked: “If the New Zealand flag changes, which would you prefer?”. I actually think this is quite counter-intuitive. Even the regulatory impact statement says when it talks about this option: “Voters are unable to express a preference for the current flag in the first referendum. This is potentially confusing for voters and may also risk engagement.” So what we have got here is a question that risks voters’ disengagement with the process, where the purpose of the bill talks about engaging voters. It is quite counterintuitive.

💬 Hon Nanaia Mahuta: That doesn’t make sense.

It does not. It is like asking the question: “If you don’t want the All Blacks to win the Rugby World Cup, who would you prefer to win?”. I mean, we all want the All Blacks to win the Rugby World Cup, so the question is quite redundant.

This brings me to Jacinda Ardern’s Supplementary Order Paper 102. I will distil this down to Part 2, clause 14(1)(a),—this is “Voting paper in second flag referendum”, where it talks about the alternative flag design that is successful in the first referendum. What defines “success”? What Jacinda has put forward is a definition of “success” that would allow at least 50 percent of New Zealanders to have a say in what is happening. But what we have got here means that we could potentially end up with a definition of “success” where around 15 percent of eligible voters make a decision that goes on to the second referendum. I do not know how many people are going to vote in this referendum; we never know these things. But what we do know is that the turnout in a postal vote is usually a lot lower than it is when you have to go to a polling station. In fact, the regulatory impact statement also highlighted this. The regulatory impact statement actually said that the best time to have this referendum is when you are having a general election because you turn up, you tick it, and away you go. But, obviously, the Government and the Prime Minister decided against that option.

We could end up, in quite a weird way, with a flag chosen by four people. We have got a flag panel at the moment and, with all due respect to Clayton Mitchell, the last speaker, he actually got this a little wrong. The people who determine the final four designs are those people on the flag committee. They include people like Rod Drury. Rod is an exceptionally good businessman; I do not know about his design skills. You have got Julie Christie, who made The GC, heaven help us. Again, she is very successful, but I am not too sure what her credentials are around flag design, or any sort of design, for that matter. So what we could end up with is four people making a final decision on the flag that goes through. How we come to this is that they have got to choose four flags that go into the first referendum and, with 12 people on the panel—if it goes for preferential voting, like a majority—you could end up with only four people choosing the flag that ends up going through to the choice between the current New Zealand flag and the final flag.

But, again, let us take it back to how many people here may end up voting and, therefore, the definition of “success”. At the last general election there were around about 2.4 million voters who voted, which is not high, but it is about standard and it is what we have come to expect in this day and age. In local body elections, where it is a postal vote, you are really lucky if you get 50 percent of people voting. In fact, that is quite high. In Napier, for example, where there was a very, very strong local issue, we got about 50 percent voting, and that was considered by all and sundry as a high percentage for a postal vote. So let us assume that we get 50 percent of people voting in this first referendum. It is preferential voting, as outlined in clause 20, which talks about the electoral systems for the referendums. Clause 20(1) states that it is the preferential voting electoral system for the first referendum. We could end up with, let us say, 700,000 people voting and, because it is preferential voting, we may end up with, in fact, about 30 percent of those who voted voting for the successful flag as their first preference. Again, we end up with about 350,000 Kiwis determining the final vote that goes through, so one-tenth of those who are eligible to vote may end up making that decision. I know and I understand that there is going to be a whole lot of advertising on this and, as Jacinda Ardern pointed out, there is no spending cap, so someone like Gareth Morgan or perhaps—and I do not mean to cast aspersions on anyone’s character in way, shape, or form—those on the voting panel, for example, and there are some who are incredibly wealthy, may want their first preference to be the flag that goes through to the final referendum.

It has been a really interesting debate as we have got into Part 2. I was actually quite amazed that the members opposite wanted to shut down any mention of the Labour Party policy. I thought that they would have been really keen for their policy to be out there in the public domain, but, anyway, I will not go there because I know that, for whatever reason, they do not want their policy out there.

I do just want to get into Supplementary Order Paper 102, which has been put forward, with a new clause 10A, which talks about there needing to be a 50 percent return of valid votes. I have a bit of an issue with that. The previous speaker, Stuart Nash, talked a little bit about local government elections. If you were going to go with the 50 percent rule, almost every council in New Zealand would be invalid. I know that some people do not particularly like local government. I know that a lot of people do not necessarily like local government and they might want to get rid of local government, but what you are saying is, in fact, that no council in New Zealand would be valid unless 50 percent of the population turned out to vote. I was fortunate enough in that I did get over 50 percent of the votes cast when I was in local government, and so that was an important part.

I think this hang-up with a specific number is quite dangerous territory for us to get into. It would be setting a constitutional precedent, because at the moment it is in none of our elections—none of our elections. Whether it be local government or central government, whenever elections are held in New Zealand, we do not have this minimum threshold for participation. So I think that if we were to put something like this in place, it is changing something that is quite significant.

What we are saying is that not everybody must participate. We actually do not have compulsory participation in voting in New Zealand. If we want to change the rules and make things compulsory, well, we can go into that debate at another time. But, at the moment, we do not have that, so we cannot compel people to vote. So if people choose not to participate, that is their right. That is a choice that people can choose to make, which is not to participate.

There has been a little bit of concern, I think, and people have asked whether, if people do not participate in the first vote because they just want to vote No, they will be excluded from participating. Well, there will be a second referendum, and they can participate at that point. But my advice to those people is absolutely to vote in the first referendum, because if the way that things turn out is that there is a vote for change in the second referendum, I would advise anybody who has got a view about any of the alternatives to actually make that view known.

When Mr O’Rourke was talking, he said that there was a presumption in the first referendum that there will be a change because, I think, the wording says “if”—“If the New Zealand flag changes, which flag would you prefer?”. The last time that I ever heard anyone use the word “if”, there was no presumption that it would occur. So asking “If the New Zealand flag changes, which flag would you prefer?” does not exclude anybody. It is not presumptive that it will change; it is simply asking: “If”—if—“in the second referendum there is a vote for change, which one of these four would you prefer?”. It is pretty simple, it is pretty clear, and it is pretty concise.

Here we go. In clause 10 we are talking about the subject of the referendums. We have got these two referendums in sequence. I know that I mentioned this when we discussed the last part, but it seems that people are still not that clear on how it is that people might be excluded. Everyone will get a vote in both referendums and, in the second one, anyone who wants to reject it will simply be able to reject it, and anyone who just wants to change, for whatever reason, can vote for it. But if you have a yes/no vote first, you will exclude those people who are open to the idea of change, but it will depend on what the option is. That is the important reason. That is why we are doing two referendums. That is why we are doing them in this order—so that it includes everybody, not just those people who have already made up their minds about what they think about the flag.

I just want to touch on a few of the other clauses as we go through Part 2. I have mentioned the need for us to have the alternatives in there. I have mentioned that it is, in fact, simply a very clear choice.

I was only too sad to hear that contribution from Jono Naylor come to an end. It was very enlightening on the word “if” and his views on local government.

But I want to turn my attention to Subpart 4 in Part 2 of this bill, particularly around the dispatching of voting papers and the marking and returning of voting papers in clause 21 through to clause 26, and clause 27 through to clause 30, in this, the first of my contributions. I want to look at the way in which this referendum is going to be held. We are doing this in a way that is replicating a system of voting where we have evidence—which builds up every 3 years—that it does not work.

My colleague Stuart Nash has talked about the very low voter turnout that we get at local government elections. So I want to turn our attention to clause 24, which sets out in this legislation some ways you might be able to vote other than by postal voting. It is reasonably prescriptive about how you might be able to get your voting papers by some other new and fandangled method such as a fax machine or by email or by having it dictated to you, if you are on Tokelau, Campbell Island, or Raoul Island; if you are in the Ross Dependency; if you are on a fishing vessel or a naval vessel; or if you are in some remote location overseas. Also, if you have not—

💬 Hon Ruth Dyson: Or Christchurch.

Yes, if you are in Christchurch—would that count? Cook Strait is between these islands, so we would have to question that.

There is also the situation, in subclause (1), where you have not received your voting paper, that you might be able to apply to receive it in this way—that you cannot reasonably be expected in all circumstances to make your own arrangements for the voting paper to be forwarded, and you have the facility for receiving the voting paper by the method applied for.

In the justifications that we have heard from this Government for the ridiculously low turnout at the public meetings against the large level of spending, we have heard from the Minister Nikki Kaye that we live in a digital age and that people do not meet in meeting halls any more. She pointed to the large number of online submissions. So why—and I would like to hear from the Minister in the chair, Paul Goldsmith, his contribution on this—are we persevering with this method of voting? Why is it postal voting, a method that we know excludes young people? It has a predominance to exclude many groups, which I will go through.

Why are we not making allowances for the dispatching of voting papers in more innovative ways? We are not talking about voting in a council election or a community election where, if it goes wrong, you can change it in 3 years. We are talking about a symbol of nationhood here. We have a Government that likes to talk about itself as nation-building, which is going through a tired exercise and a glory mission for the Prime Minister, and not thinking about how we truly can have voter input on this.

If we have a look at the evidence from local body elections about where these voting papers are going to be dispatched by the methods that are described in this piece of legislation, we already know there are groups that are not going to turn out. We know that if people are young they are unlikely to turn out because the evidence points there. I would like to see the Minister make a call and hear him talk about what plans the Government has and what there is in this legislation to ensure that we are engaging young people—young people whose symbol of nationhood this will be, if this referendum is successful, for a very long time to come.

I would also like to point to the low voter turnout we have in local body elections—well, in all elections, but particularly in local body elections—in low socio-economic areas. One of the reasons is, actually, New Zealand Post has withdrawn postboxes from a large number of those suburbs. It cites vandalism as the reason. The research has pointed to the fact that it is actually much harder to vote in these suburbs because there simply are not ways to return the voting papers in communities and neighbourhoods where people are often quite transport poor and they rely on being able to do things locally.

What we also know is that new subdivisions that spring up do not necessarily have postboxes. Actually, as a member of Parliament in the west of Christchurch where a large number of subdivisions are springing up, I spend an inordinate amount of time trying to get New Zealand Post to put postboxes into these new subdivisions so people do have that facility. This all goes to the fact that we are putting in place—

Tēnā koe e te Heamana. I first tried to get the call on this legislation at I think around 4 o’clock, so thank you very much for choosing me at last, Mr Chairman. It is a great pleasure to speak to Part 2 of the New Zealand Flag Referendums Bill. It is Māori Language Week, as we all know, and I think it has been one of the better weeks for celebrating Māori language that we have had in this Parliament. There have been a lot of really excellent contributions. So I will acknowledge “Wīremu Pākehā”, whose name is on the New Zealand Flag Referendums Bill, but I have also heard the bill described during the debate—not yet on Part 2, but now to be on Part 2—as the kaupapa whakapihapiha in the name of “Hone Kī”, and that is spelt K-i, not Key, which means, of course, the vanity project of the Prime Minister.

This part, Part 2, is very wide ranging. It goes from clause 10 right through to clause 66A, and, as you indicated earlier, Mr Chairperson, it covers the processing of the referendums, ranging from the issuing of ballot papers, the types—it obviously specifies the subject consistent with what we have discussed earlier in Part 1—right through to the appointment of officers. There are many questions for me that have been raised during this debate already, and I would be very appreciative if the Minister who is currently in the chair, Todd McClay, could make an effort to get some information from his officials and pass it on to the Committee of the whole House, particularly for the benefit of those of us who were not sitting on the Justice and Electoral Committee.

I am really interested as to why we seem to have brand new provisions in this part relating to issues that have arisen in numerous other voting procedures. So we have the new way of appointing officials; we have a different voting period; and we have, obviously, the specificity for the second flag referendum, as opposed to the first flag referendum. That is understandable, because we have not had a flag referendum before, but why do we have, for example, the new dispatching provisions of voting papers? Why do we have this extraordinary situation where the only way that you can use this modern fax machine to get your voting paper, or have it emailed to you, is if you happen to be “on Tokelau, Campbell Island, or Raoul Island; or (ii) in the Ross Dependency; or (iii) on a fishing vessel or naval vessel; or (iv) in some remote location overseas;”? What is that about? We have computers and we have fax machines in the South Island, and I would really appreciate it if we could be considered as part of this, too.

My point is—and the Minister who is now in the chair, Michael Woodhouse, may wish to pick this up, get some advice from his officials, and relay—are these provisions consistent with other provisions in electoral legislation; and, if so, why are they duplicated in this, which is not consistent with best practice in drafting legislation? If they are not the same as we have and if we do not have the same dispatching of voting paper provisions and we do not have the same criteria for when people are able to get papers emailed or faxed or dictated to them, why is that the case?

Exactly the same question applies in terms of advertising. I was very surprised to see that there appears to be no limit on the ability of people to promote a particular favourite in this. We have been very rigorous in New Zealand in ensuring that money does not buy votes. It is quite fundamental. We know that more exposure, able to be generated only by more money or by access to the media, is likely to generate a familiarity that will then translate into votes. So why do we not have, in this legislation, any advertising curtailment or any limit on the amount of money that can be spent? Not only is there no limit on that during the period leading into the referendum, but what about when the panel of 12 people, I think it is, who have been so busy spending taxpayers’ money having meetings all around the country—what about when they choose their top four flags? What ability are they going to have to promote those?

Thank you very much, Mr Chairman, and I am quite sure we will come back to my colleague the Hon Ruth Dyson, who has a number of important matters to raise under Part 2 of this bill.

I want to raise two matters in this first call on this, both of which eventually find their way to schedule 1, which we are considering under Part 2 of the bill, around the voting papers. But I want to first talk about how the voting papers will make it to electors or to voters in these referenda. As other colleagues have mentioned, this is, as the Government tells us, a once-in-a-lifetime opportunity. I think that is challengeable in some ways, but if we, just for a moment, accept the Government’s rhetoric that we are talking about a once-in-a-lifetime opportunity to change the flag, surely we should be coming to the House to debate under Part 2 the use of the best way in which we could engage New Zealanders in this vote. I mean, I have a personal view, which I doubt is shared by all of my colleagues, that this is actually the kind of referendum that 16 and 17-year-olds should be participating in, potentially, because I actually believe that we are talking about something with such long-lasting consequences that, actually, we should be looking at extending the franchise to the greatest number of people.

That was not something picked up during the discussion, but when we actually look at the way in which ballot papers will be distributed we have a sorry lack of imagination from the Government in terms of how it will get material out, in particular the fact that it is relying on two or three main ways of ballot papers returning. The first of those is, obviously, the postal vote. I think everyone in this Committee knows that postal services are declining—be it in terms of the number of days of delivery of postal services, or be it the positioning of postboxes, both of which are declining. In my own electorate here I am currently in discussions with New Zealand Post about the loss of postal services in a number of parts of my community, and here we have, in Part 2, a piece of legislation that anchors itself on the postal service and getting things back through that way. But it is all right, because the Government has got a solution. It has discovered a thing called the fax machine, and that is apparently going to be what will rescue this referendum from its possible low turnout! There is an enormous amount of time in Part 2 devoted to how the fax machine will be used to return ballot papers. I am going to go out on a limb here and suggest that most organisations and places that people who might want to return their ballot papers would go to do not have fax machines any longer. They actually do not have them.

💬 Dr Megan Woods: No!

I know it is tragic. I know that—

💬 Dr Megan Woods: Is this the future?

This is the future.

💬 Hon Trevor Mallard: I’ve got one—I’ve got one, but it hasn’t been attached for 4 years.

It comes as no surprise to me to learn that the Hon Trevor Mallard is in possession of a fax machine. It sits very well alongside his fondue set and VHS recorder that he also has at his house. But most New Zealanders will find that they will struggle to find a fax machine.

💬 Hon Trevor Mallard: What’s wrong with a fondue set?

That is right. Let us not go any further on this, Mr Mallard, or I will start talking about fondue sets and key parties in the 1970s, and we do not need that.

So we have here, in Part 2, the idea that the fax machine is the next best thing alongside the return of the ballot papers. This is a sad indictment and, unfortunately, will lead to the very problem that Jono Naylor accidentally revealed when he gave his speech earlier on, which is that the Government knows it is heading towards a turnout of under 50 percent for this referendum, because Mr Naylor stood up and said—

💬 Denis O’Rourke: Under 25.

Well, indeed—under 25, Denis O’Rourke says, and that is quite possible as well, because Jono Naylor, a man with experience of poor turnouts in local body elections, stood up and told us that that is what you get with these things. Well, that is not good enough. That is not good enough for a referendum of this type.

But, as I said, I want to move on to the question of the actual ballot papers themselves that will be released. I want to ask a question of the Minister in the chair, to get absolutely clear, and that is the question of the randomisation of the ballot paper.

💬 Hon Member: Oh, good question.

Thank you. In clause 13(4) we know that for the first referendum it says: “For the purposes of subsection (3), the Electoral Commission must arrange the alternative flag designs on the voting paper in random order.” This is repeated for the second referendum in clause 14(2): “For the purposes of subsection (1), the Electoral Commission must arrange the 2 options on the voting paper in random order.” What I want clarification on from the Minister in the chair is: is random order the same as a unique order on each ballot paper? So, to explain, it is possible in schedule 1, when we view the voting paper for the first flag referendum, to see the four options put out. Is what we are saying here in this bill that they will simply be not necessarily A, B, C, and D, but D, B, C, and A, or will it be on each ballot paper that they will be uniquely random? This is actually a very important point, because there is a lot of international research that would tell you that the order in these situations is very important. In one British study we are told that if you are first, you are twice as likely as the second position on a ballot paper to be voted for.

💬 Hon Trevor Mallard: Didn’t work for Chris Bishop.

No, it did not, Mr Mallard, and we will make sure that gets in Hansard for you there. So that is good. To have the four in random order is not actually enough. It needs to be uniquely random.

But that is only the first issue that I have with this. Obviously, in the second referendum we have got two options and, similarly, the question would be raised for that. What concerns me about the ballot paper for the first referendum, contained in schedule 1, is that we run into that question that is—I mean, I wonder whether anybody who is watching tonight can see this bill in my hand. They probably will not be able to and they do not do close-ups on Parliament TV, but they would see that in extremely small writing to the left of the options, it says—says he, looking over his glasses—“Write number(s) here”. I can already see the beginning of the problem.

💬 Hon Ruth Dyson: Sorry, where are you at? What page?

Sorry, Schedule 1 of the bill. I can already see the beginning of problems here of attaching to options A, B, C, and D, numbers 1, 2, 3, and 4—whether or not people will be able to sufficiently understand the question they have been asked. So let us read the question they have been asked: “If the New Zealand flag changes, which flag would you prefer?”. The answer to that question under this ballot paper is four options that you have to rank. You do not have to put that in, obviously, but you will be presented with four. The question is, actually, not what is then done. If you are a person who thinks visually rather than somebody who thinks in terms of words, you are actually getting two different instructions. You are being asked which flag you prefer, a singular, and then you have four boxes that you are being asked to fill numbers in on. I think there is a risk that Mr O’Rourke’s 25 percent turnout could turn into a 25 percent turnout, and then half of the ballot papers being spoiled or invalid because people have actually failed to understand exactly what it is they are being asked.

This, of course, brings us back to the very point of why we are doing the referenda in this order, why we are having the conversation this way, because New Zealanders are going to have a ballot paper placed in front of them. If they have got decent eyesight, they will be able to work out that they have to write some numbers in the boxes underneath the flags. But, actually, they may well think they are answering a question that is: which flag would you prefer? I suspect there will be a great deal of ballot paper spoiling that goes on. There are instructions, of course, and I do need to point out that the ballot paper says that there will be instructions above. I think we all know from other electoral processes that it does not matter how many instructions you put on a ballot paper or above a ballot paper like this, people will continue to make mistakes. Unfortunately, I do not think the voting paper for the first referendum is clear in terms of what is being asked of New Zealanders.

So on those two points on Part 2, I would like a response from the Minister just to clarify for us whether or not there is going to be a unique random ballot paper—each ballot paper will be uniquely random. If that is not the case, I think we have a significant problem. If it is the case, then he can at least provide some reassurance to us. But I also think it is time for a Minister to get on their feet and explain to us why they are locked with Mr Mallard somewhere in the 1970s, asking New Zealanders to fax their ballot papers back.

💬 Hon Ruth Dyson: I take offence on behalf of Trevor.

That is right. Ruth Dyson takes offence on behalf of the 1970s, but I say that we are now in the 21st century. It is now time for us to have a modern election.

I wanted to talk about clauses 14 and 27, and schedule 2. First of all, regarding clause 14, in my previous speech I referred to subclause (3), in which there is a prescription for an official description of the current New Zealand flag, and I was saying that it actually needs a lot more than that. It needs information for people—especially young people, but all people—on the history and heritage of the current flag. I think it should be explained to people that it is not just by coincidence that we have this flag. It was not just something somebody dreamed up because it looked nice. It actually has a lot of history and heritage with it.

It has components. First of all, there is the Union Jack. A lot of people do not even know what the Union Jack is, that it is actually three other flags put together: St Patrick’s flag, a red diagonal on a white background, for Ireland; the English St George’s flag, an upright red cross on a white background; and the Scottish flag, St Andrew’s flag, a white diagonal on a blue background. A lot of people do not even know that, but, also, they do not know why there are four stars on a blue background—the Pacific-blue background and the four stars of the Southern Cross representing the Māori navigators who first discovered New Zealand for the human race. All of that heritage should also be explained, because it is important. A flag does need to represent what a country is and not be just a pretty design.

I also wanted to speak about clause 27, because that refers to the method of voting. Clause 27(1)(a) says that an elector “must mark the voting paper by expressing a first preference for 1 option;” and, in paragraph (b), may express other preferences as well. But nowhere is it possible for anyone to express no preference for any of the four options. People simply do not get that choice, and they should. The point I am making is that there should be provision for people to say “I don’t want any of these four flags.”, and for that to be recorded and for that to be made public, because that is actually important. I think that it is very important and that it should say that. It is a real shame that it does not.

In any event, and I agree with Mr Robertson on this, a lot of people are going to make a mess of that particular first referendum ballot because it is not clear what people should say. So some people will also wrongly believe that even if they do not want any of those four preferences, they must choose one. Some people will think that, and they will wrongly choose one when they need not do so. So I think there is a real problem with understanding, as far as the first ballot is concerned.

Referring to the second referendum ballot, which is in schedule 2 of the bill, the question there is: “What is your choice for the New Zealand flag?”. There is an “Option A” and an “Option B”, one of which is the current New Zealand flag and the other the alternative chosen as a result of the first referendum.

I think this question is the wrong question. It should say, for example, “Do you want to retain the current New Zealand flag or do you want to have the alternative flag shown?”, because that is actually the real choice. It is not just a choice between designs or between “Option A” and “Option B”; it is actually a choice between retaining the current flag or not, and it refers back to what I was saying before about the fact that the current flag has with it a lot of heritage and a lot of history. It represents a partnership between what was the British heritage of New Zealand—the British legal system, the Westminster style of Government, the English language, and so on—and the Pacific and Māori culture. That partnership is also contained, of course, as we all know, in the Treaty of Waitangi.

So the flag actually does represent New Zealand in terms of that bicultural culture and history. OK, I admit also, and Nikki Kaye made the point, that it is also a multicultural country. But the fundamental culture is that partnership, and that is what that flag represents. That is not reflected in the voting paper for the second flag referendum as set out in schedule 2; I believe that to be accurate, it should.

I move, That the question be now put.

I would like to talk to clause 37, which is “Procedure after close of voting period”. It says: “As soon as practicable after 7 pm on the last day of the voting period, the Returning Officer must,—(a) in the case of the first flag referendum, count, in the manner described in Schedule 4, the votes received for each option …”.

Before I turn to schedule 4, I would just like to ponder the incredible contribution from Jacqui Dean—an incredibly ridiculous contribution, I believe, from Jacqui Dean—who said that we should not have five options in schedule 1, the fifth option being the New Zealand flag, because we may get it confused with other flags. She does not think New Zealanders are intelligent enough to look and think: “Option A—oh, that is an alternative design; option B is an alternative design; option C is an alternative design; option D is an alternative design; option E—oh, that is the New Zealand flag.” It is too hard to recognise that there.

So let us turn to schedule 4 instead and the method of counting votes. If she thinks New Zealanders are too simple to recognise the New Zealand flag out of five options, let us turn to the method of counting votes in schedule 4. It says: “Votes are counted by recognising preferences as provided for in Part 2 of this schedule, and by performing the steps in clause 3 to 9 until an option is successful.” Here is step 1: “Determine the absolute majority of votes using the following formula: m = (v – vnt) ÷ 2”. Look, if New Zealanders are incapable of recognising the New Zealand flag out of five options put to us, how on earth are we going to be able to understand step 1 in the method of counting votes?

Let me explain a bit further. The key states: “m is the absolute majority of votes and if m is not a whole number, it is rounded up to the next whole number”. How can we have a number of votes that is not a whole number? Are we going to have 1,365,000.2 votes cast? It is absolute nonsense that we will not have a whole number in terms of the numbers of people voting. Also, “v is the number of voting papers” and “vnt is the total number of non-transferable votes.” Clause 4 states: “An option is successful if the number of first preference votes equals or exceeds the absolute majority of votes.” I am glad that is really clear for all of New Zealand to understand. As a former teacher, I say that it goes to prove the rule that you do not actually have to know what you are teaching, you just have to teach it, because I certainly do not understand that formula there. That was step 1 that we went through.

Step 2 states: “If no option is successful, the option with the fewest first preference votes is excluded.” OK, that means that the one with the least votes is discounted. That is fine. Clause 6 states: “For each voting paper on which the option excluded under clause 5 is the first preference, redistribute that vote to the option that is the next preference on that voting paper.” I am sure the people of Tai Tokerau really understand this! They are really going to understand the process that we are going to go through to select the flag, how they are going to vote, and how the counting is done with the clarity of these instructions, bearing in mind the extraordinary contribution from Jacqui Dean that New Zealanders are incapable of distinguishing the New Zealand flag from a list of five flags.

Where is she the MP for? I did not realise we had an electorate called la-la land, but she is certainly the MP for la-la land if she does not trust New Zealanders to be able to distinguish the New Zealand flag out of a list of five flags. I mean, it is not like they have to read the description of the flags; pictures are going to be there. She is probably talking about herself—that she will not be able to recognise the New Zealand flag out of five pictures.

I move, That the question be now put.

Tēnā koe e te Māngai o te Whare. Ngā mihi ki a koutou katoa. Thank you very much for the opportunity to contribute to this Committee stage debate on the New Zealand Flag Referendums Bill. I particularly want to focus on clause 10 and clause 13 in Part 2, and I want to start by commending my colleague the Hon Trevor Mallard, who managed to get 43,000 people to sign a petition to say that they wanted a yes/no vote. It is interesting because the flag consideration process got only 700 people along to the public consultations, which represents 1.6 percent of the people who engaged in the Hon Trevor Mallard’s process. So I think that he has done a great service to democracy because he has got New Zealanders to engage in this process.

In terms of clause 10, I want to congratulate my colleague Jacinda Ardern, because I 100 percent support her Supplementary Order Paper 102, which wants to insert new clause 10A, which reads: “the second flag referendum may take place only if more than 50% of electors return a valid voting paper to the Returning Officer in the first flag referendum.” Why do I think that a simple majority actually is sufficient? Because a simple majority represents that the majority of electors in our democracy actually agree with the proposition that, in fact, our flag should change. Why do I think that is incredibly important? Because I fundamentally believe in democracy, and a democratic principle actually is about majority rules. What this Supplementary Order Paper ensures is that the voice of the majority of New Zealanders is more than taken into consideration but actually guarantees the passage of this piece of legislation.

In fact, if we were to do that, we would not be the only country in the world to do that, because in places like Armenia they actually require 50 percent of registered voters’ support for any constitutional change. In the Cayman Islands it is the same process—more than 50 percent of registered voters have to vote for any constitutional change. In Hungary they are a little bit different because they say that half of the people who are registered to vote have to vote, and then half of those who have voted have to vote in favour of whatever particular constitutional question is at hand. Ireland, for example—theirs is not quite a majority, but they require 33.3 percent of voters who are registered to vote in favour of a particular proposition. In Sri Lanka you have to have a turnout of more than 66.7 percent, and of those a third of all possible voters have to support any constitutional amendments. In Zambia there is a 50 percent turnout requirement, and of those, 50 percent have to approve of any constitutional change. In Fiji, one of our Pacific cousins, they require a 75 percent approval. Essentially, what I am trying to do is to highlight that what my colleague Jacinda Ardern is doing is actually ingraining the principle of majority rules, which is a fundamental principle of democracy, in this piece of legislation for any constitutional change to happen.

I also want to speak to clause 13, which is about alternative flag designs. It has been really interesting reading some of the media commentary about the participation in this flag referendum bill. We have had over 10,293 flags submitted to the process, of which the Flag Consideration Panel is now trying to ascertain four flags that will go into this referendum. But the interesting thing I want to highlight is that of those, 25 percent are actually from people living overseas, so they are not New Zealanders. They have got no vested interest in our country. They actually do not live here, and so you kind of have to question what the legitimacy of their entry is in this process. Because 25 percent of people living overseas actually, to me, just reeks of them participating in an art competition—that New Zealand, basically, has had this big art competition and people overseas now think that, actually, they can decide what the identity of our country is. Is that valid? And, actually, are all those flags going to be considered by this Flag Consideration Panel? Because I would have thought that they should not be, because if people have just put in a design, and actually it is not about—

I would like to talk about clause 27, and this is about the method of voting. There is a little bit of confusion—I apologise; I am just a simple boy from the regions, so, hopefully, someone will be able to enlighten me.

What it says in “Method of voting”, clause 27(1)(a), this is talking about the first flag referendum, is: “An elector voting in the first flag referendum—(a) must”—the word “must” is important, because in legislation we have the word “must”, which compels someone, and we have the word “may”, which does not compel but recommends “mark the voting paper by expressing a first preference for 1 option;”. OK? So you have got to put a “1”, for example—1, 2, 3, 4. It sets it out in schedule 1, how this is supposed to be.

I suppose my concern about this is that in the second referendum, clause 27(2), it talks about “[you] must mark the voting”—you “must”; again, it has used the word “must”—“paper with a tick in the circle …”. Where this breeds a little bit of confusion—again, I would like the Minister in the chair, Michael Woodhouse, to enlighten me on this—is if, for example, in that first referendum, a voter does not put 1, 2, 3, or 4, or has only one flag design that they would like and they tick that box. Is that valid? Is that vote informal? Or does it still stand, if a voter has given a very clear preference for their flag design? Perhaps there should even be a “clause 27(1)(c)” that says, for example, “If it is obvious that the elector has clearly indicated a preference for only one design, this shall be deemed a valid vote.”

Again, I have the same point around clause 27(2), where it says—again, this is the second referendum here, where there are only two preferences; so it is the current New Zealand flag and the design that wins out of the first preference—“An elector voting in the second flag referendum must mark the voting paper with a tick in the circle …”. My concern about this is if, for example—I am making an assumption here that could be right or might not be—people have partaken in the first referendum where it is a 1, 2, 3, or 4, and in the second referendum if they put a “1” as opposed to a tick in one of the boxes but it is still very clear that their preference is for one of the options, i.e., they have not spoilt the paper in any way, then will that vote be informal? Again, perhaps there should have been a clause 27(2)(a) where it says: “If it is obvious that the elector has clearly indicated a preference for only one design, this shall be deemed a valid vote.”

If we go to clause 32, it talks about informal voting papers. This is where I am a little bit confused because, as mentioned—I do this a lot; you look at the writing of the legislation because it has to be tight for a reason, we all understand that—this is where the words “must” and “may” often change a clause quite substantially in legislation. It says here: “A voting paper is informal if the Returning Officer is satisfied,—(a) in the case of the first flag referendum, that the voting paper does not clearly indicate the voter’s first preference;”. So, to me, this says that in that first referendum, if a person puts a tick or puts a cross just beside one preference, then that vote is valid. However, in clause 27(1)(a), that may indicate that that vote is ruled out.

I have the same concern for clause 27(2) in the second referendum, where it says that the elector must tick the second flag referendum with a tick in a circle. Again, we look at informal votes here at clause 32(b), which is “in the case of the second flag referendum, that the voting paper does not clearly indicate”—so we are talking about a different issue, an informal vote here—“the option for which the elector wished to vote.” I suppose my concern here is that there is the sort of common sense aspect to this. I am assuming that the returning officer will use the pragmatic approach where even though the legislation says in the second referendum that it must be a tick, if, however, the elector has put a cross or put a “1”, but it is very, very clear what their preference is—

I move, That the question be now put.