The weeks leading up to the election have been a cacophony of campaign material, news reports and social media discourse - but at midnight on Friday, it all came to an abrupt stop.
The hoardings came down, the politicians stopped campaigning, and the media stopped writing and broadcasting. Not a word was spoken about the parties, candidates or who could be our next Prime Minister.
Nor have we heard anything about the perceived benefits or harms of the Cannabis Legalisation and Control or End of Life Choice referendums.
That's because for 19 hours on election day - from 12am on Saturday, to 7pm when the polling booths close - it is prohibited to campaign or do anything which obstructs or influences voters. In effect, the only thing Kiwis can do or say in regard to the election is acknowledge that one is occurring.
But with most eligible voters already having had their say during the advance voting period, is election day silence still golden - or is it time we overturned the rules?
What the legislation says
The polling day silence rules have been in place for decades, and are enshrined in Section 197 of the Electoral Act 1993. Those who break the law could be liable for a fine of as much as $20,000, depending on the severity of the offence.
The legislation expressly prohibits the publishing, distribution or broadcast of:
- Anything likely to influence any elector on who to vote for or to abstain from voting
Any party name, emblem, slogan, or logo
Any ribbons, streamers, rosettes, or items of a similar nature in party colours
This means all campaign material is prohibited, all signs and hoardings need to have been taken down, and influencing of voters anywhere is against the rules.
Polling of voters and taking part in demonstrations is also banned, as is posting anything to social media or to a website that could influence voters - including profile pictures.
Existing election or referendum material is only allowed to remain online as long as it isn't updated on election day, it's only available to people who choose to access it, and the site isn't advertised.
The Electoral Commission says compliance with election day rules was "at high levels" during the 2017 election. It received 657 complaints on election day, but most of these related to matters that are "lawful but that voters dislike".
All up, just 10 apparent election day silence breaches were referred to police:
Four relating to social media content on election day
Two relating to incidents concerning the Communications Director for a political party
Two involving persons/organisations publishing or sharing statements on election day
One relating to TVNZ's broadcast of its Te Karere news programme
One relating to the occupier of a property refusing to remove political signage
Why the law exists - and why it might be time for a change
Dr Geoff Kemp, a senior lecturer in politics at the University of Auckland, told Newshub the law's function is to prevent voters being unduly influenced before they head to the polls.
"The thought is that, at the moment you go out to vote, seeing a particular bit of media coverage could have an effect on you," he explained. "It invites a scrap for media coverage that wouldn't be helpful for maintaining independence in thinking and their vote."
But the removal of anything with potential to influence voters is having an increasingly limited effect, with Kiwis voting in advance of polling day in greater numbers every election cycle.
By Monday - with five full days of advance voting left to run before election day - numbers had already surpassed the then-record total of 1.24 million votes set at the 2017 election.
Well over 60 percent of Kiwi voters are likely to have already had their say by midnight on Friday - a huge lift on three years ago, when most Kiwis waited until election day to have their say. Just shy of 2 million Kiwis have voted in the last fortnight.
Dr Kemp says this is reason enough to have another look at the legislation.
"In a sense, the rules and regulations were based on the idea the vast majority of people would be voting on election day, so it should be distinct from the preceding period," he explained.
"But if you've got more than half the people voting before election day itself, it makes you think it could do with having another look at it."
It's not just advance voting that threatens to undermine election day silence laws, either.
The growing influence of social media is also a problem, with the Electoral Commission having to keep an eye on posts that influence voters across a range of platforms, and spy agencies warning of the increased threat of foreign interference it poses.
What it would take for the law to change
The marked contrast in campaign rules between the advance voting period and polling day was flagged by the Electoral Commission in its report on the 2017 election.
"The Commission notes that the current election day campaign rules are inconsistent with the rules during advance voting, and likely to be an issue that Parliament is again asked to reconsider given the further growth of advance voting," it wrote at the time.
A spokesperson for the Electoral Commission told Newshub the rules around campaigning are a matter for Parliament, and they expect silence laws to come up again for discussion before the 2023 election.
The Justice Select Committee - which conducts an inquiry into the election each time Kiwis go to the polls - considered the issue of election day silence after the 2017 election.
In its report it noted that "the rules against influencing voters on election day were enacted before the internet and social media became a regular part of daily life". However it ultimately decided not to recommend a change to the legislation.
Dr Kemp says electoral law changes don't happen very often, because politicians always consider how it would look to tinker with the current election arrangements.
He told Newshub it's probably not quite a weighty enough topic to go to a referendum, but would require some sort of cross-party agreement before an amendment was implemented.
"It's not something a dominant party should try to push through as a normal piece of legislation," he said.
Dr Kemp says it makes sense for leaders of the major parties to hold discussions about an end to election day silence alongside talks about extending the length of the current election cycle from three years to four.
He explains that one of the reasons some people want a three-year cycle extended is that it allows New Zealand's political system to move away from what he calls "the perpetual campaign" - the shrinking of the time spent governing, due to the demands of campaigning.
Dr Kemp says a reversal of the election day silence law could have the opposite effect.
"I suppose if people are voting in the weeks before election day, it contracts the period we're not at the sharp end of a campaign right down," he said.
