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FALQs: New Zealand’s Flag Referendums

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Current New Zealand flag. Source: New Zealand Government.
Current New Zealand flag. Source: New Zealand Government.

This blog post is part of our Frequently Asked Legal Questions series.

Between March 3 and March 24, 2016, New Zealanders were able to vote in the country’s second referendum related to whether or not to change the official flag.  Previously, in November-December 2015, voting in the first referendum narrowed the list of possible alternative flag designs from five to one; the second referendum was a run-off between the preferred alternative and the current flag.

The flag debate and referendums have been the subject of widespread media coverage, both in New Zealand and overseas.  I have had several people ask me about the process, with particular reference to certain designs submitted by New Zealanders themselves as part of a nationwide search for a new flag.  You may well have heard about the “Laser Kiwi” design, or possibly the “Sheep and Hokey Pokey,” or maybe the “Kiwossum.”

You may also have heard by now that the results of the second referendum are in, and they fell on the side of keeping the current flag.  The preliminary figures were 56.6% in favor of the current flag and 43.2% in favor of the proposed alternative.  The official result, released today, confirmed these figures.  Regardless of the result, the fact that this was the first transparent and democratic process for deciding on a country’s flag is significant.  In this post, I highlight some of the key steps in the process and the various laws involved.

1.  What led to New Zealand considering changing the flag?

Silver Fern flag. Source: New Zealand Government.
Silver Fern flag. Source: New Zealand Government.

New Zealand became a British colony in 1840 and was effectively made self-governing (at least in relation to domestic matters) in 1856.  The current flag was officially adopted through the passage of the New Zealand Ensign Act in 1902, although its origins date from 1865. Under the Colonial Naval Defence Act of 1865, vessels from the colonies were instructed by Britain to fly the Blue Ensign with the seal or badge of the colony on it.  The Blue Ensign consists of a royal blue background with a Union Jack in the canton (top inner corner) of the flag.  In 1869, the Governor of New Zealand directed that the Southern Cross, represented by four five-pointed red stars with white borders to correspond with the colors of the Union Jack, be added to the flag.

Steps towards full independence from Britain were taken incrementally throughout the 20th century.  For example, the adoption of the Statute of Westminster in 1947 confirmed that only the New Zealand Parliament has the power to make laws for the country, and the Constitution Act 1986 formally ended any residual British legislative powers.  In 2003, the use of the Privy Council in London as the final court of appeal was abolished by the Supreme Court Act 2003.  The relationship between New Zealand and Britain also changed more broadly over the century, with Britain joining the European Economic Community in 1973 and New Zealand’s trading relationships shifting to focus on countries in the Asia-Pacific region.  In 2013, Asia overtook the United Kingdom as the most common birthplace among people living in New Zealand who were born overseas.

Some have argued over the past several decades that the current flag, featuring the Union Jack, no longer represents or reflects New Zealand’s current status as an independent, multicultural nation.  People have also decried the fact that the flag is quite similar to the Australian flag, which has occasionally caused confusion internationally.  On the other hand, many people feel an attachment to the flag for various reasons, such as New Zealand troops serving under the flag in both World Wars.  They may also see it as continuing to represent the country’s past and present, including its ties with Britain and the Commonwealth.

The debate and referendum process over the last couple of years was certainly not the first time that there had been discussions about changing the flag.  Most recently, in 2005, the Trust launched a petition for a referendum on an alternative design, which gained 100,000 signatures and was therefore considerably short of the approximately 270,000 signatures required.  Then, in 2010, a member of Parliament put forward a bill that proposed the establishment of a commission to consult on possible flag designs, to be followed by a referendum.  While this bill did not progress, the current prime minister, John Key, who had long advocated for a change, first suggested in January 2014 that he thought there should be a referendum on the flag.  Then, in March 2014, Key announced that a public vote on the flag would be held within three years.  He subsequently announced in October 2014 that the Cabinet had agreed to a two-stage referendum process, which would commence in 2015.

2.  What actions were taken before the referendums?

Australian and New Zealand flags. Photo by Flickr user Scott Davies, Jan. 26, 2007. Used under Creative Commons License 2.0,
Australian and New Zealand flags. Photo by Flickr user Scott Davies (Jan. 26, 2007). Used under Creative Commons License 2.0,

While a majority of Parliament could simply pass legislation to change the flag, which would involve amending the current law, the Flags, Emblems, and Names Protection Act 1981, the government felt that the decision should be made by voters.

Following the Cabinet decision regarding the referendum process, the leaders of the political parties represented in Parliament met to review draft legislation regarding the referendums and to discuss candidates for a Flag Consideration Panel.  The membership of this Panel was announced in February 2015 and consisted of twelve New Zealanders with a range of backgrounds and experience.  The Panel first met in March and held 25 public meetings around the country in May and June.  It produced documents and a video on the history of the flag to assist and inform the discussions.  The Panel also invited people to submit their flag designs for consideration.

The legislation that officially put the two referendums in motion, the New Zealand Flags Referendum Act 2015, was passed in August 2015.  It provides for the referendums to be binding.  It states that, if a new flag design was chosen in the second referendum, it would come into effect six months after the results are declared, or earlier by way of an Order in Council.

The estimated cost of the process over two years, including the public consultation process and the two referendums, was NZ$25.7 million (about US$17.5 million).  This amount of expenditure was actually one of the more contentious matters in the debate over whether to change the flag.

3.  How were the five designs in the first referendum selected?

The New Zealand public responded in large numbers to the Panel’s invitation to submit flag designs.  A total of 10,292 designs were submitted before the closing date of July 16, 2015.  In reviewing the designs, the Panel agreed that a flag design should:

  • unmistakably be from New Zealand and celebrate us as a progressive, inclusive, environmentally connected country, that has a sense of its past and a vision of its future;
  • be a ‘great’ flag, which means that; it adheres to the principles of good flag design, has an enduring quality which will not become outdated, and would work well in all situations from celebration to commemoration;
  • be inclusive, in that all New Zealanders should be able to see themselves within it; and
  • not have any impediments to its use as a potential New Zealand flag.

On August 10, 2015, the Flag Consideration Panel announced that it had selected a long-list of 39 designs.  Then, on September 1, 2015, the Panel released the four alternative designs that people would be asked to rank in the first referendum. However, this list did not include a design that had been gaining support on social media – the “Red Peak” design.  Following further efforts on social media, resulting in 50,000 people signing a petition for the design to be included in the referendum, Parliament passed amending legislation in September 2015 to enable a fifth option to be added the referendum ballot paper.

Information on the five alternative designs was provided in English, Maori, and 24 other languages.

4.  What happened in the first referendum?

The first referendum involved a postal ballot and a preferential voting system whereby voters were asked to rank the five alternative designs from 1 to 5, with 1 being their most preferred option.  More than 1.5 million people (slightly less than 50% of all enrolled voters) submitted a ballot paper.  About 10% of the total votes were “informal,” meaning that they didn’t clearly indicate a first preference.

The flag design that actually won the popular vote (receiving the most number 1 votes) was by a designer, Kyle Lockwood, and was called “Silver Fern (Red, White and Blue).”  However, due to the preferential voting system, where options are eliminated and votes transferred and recounted until an absolute majority is reached, the same designer’s “Silver Fern (Black, White and Blue)won with 50.58% of the votes, compared to the red design which received 49.42%.

5.  What happened in the second referendum?

In the head-to-head vote between the current flag and Lockwood’s Silver Fern design, more than 2 million voters sent in their ballot papers (a turnout of 67.3%).  About 1.2 million voted to retain the current flag, giving it 56.6% of the total vote.  This time, only 0.24% of the votes were considered informal, while a further 0.25% were invalid and excluded from the the count.

6.  What happens now?

With the voting process over, some of course will be lamenting that an opportunity to change the flag has been lost, while others will be celebrating that the old flag will remain in place.  There have been various articles published commenting both on the outcome and the process itself, including the possible political factors involved and the cost to taxpayers.  It has been suggested that these aspects – the support of certain politicians for change and the view that the money would have been better spent on other causes – were key factors in people voting to retain the status quo.  Another factor suggested as having affected the outcome was that, while many people do want a new flag, they simply did not like the alternative offered to them in the referendum.

Anecdotal evidence aside, the results of the referendum do show that many people would like to see a change away from the current flag.  Perhaps this will mean there is ongoing impetus for discussion and debate, or perhaps this topic will die down for now and re-emerge in the future, just as it has before.  Some have called for a broader discussion about the country’s constitutional arrangements and “place in the world,” which could include examining its national symbols.  The consultation process regarding the flag, and previous efforts at public engagement around broader constitutional questions in 2005 and again in 2011-13 (resulting in a recommendation to continue the conversation), have shown how difficult it is (or at least how much time it takes) to build some kind of national consensus for change, even in a small country such as New Zealand.  It is possible to see these events as part of a longer term “nation building” process, with ongoing discussions potentially leading to both small and large developments in constitutional laws, policies, structures, relationships, and symbols.

7.  What other countries have changed their flags?

World Cup South Africa flags. Photo by Flickr user Steve Evans (June 11, 2010). Used under Creative Commons License 2.0,
World Cup South Africa flags. Photo by Flickr user Steve Evans (June 11, 2010). Used under Creative Commons License 2.0,

One example that probably immediately comes to many people’s minds is Canada.  Canada’s Parliament voted in December 1964 to change the flag from the Union Jack (the Canadian Red Ensign was frequently used but was not actually the official national flag) to the current maple leaf design.  This followed many decades of discussion about possible designs and considerable, often acrimonious, debate in the Parliament and among the public over a period of several months.  Prior to the vote, a special parliamentary committee examined many possible designs. The Queen proclaimed that the maple leaf flag would become the national flag from February 15, 1965.

Another example is the South African national flag, which was first used in 1994.  The change came with the end of apartheid – the African National Congress sought the adoption of a new flag as part of the negotiation process.  A competition to design the new flag saw more than 7,000 entries being submitted.  However, these were all rejected and an “interim” flag, merging elements of the old flag with that of the ANC, was adopted until there could be agreement reached on a new design.  This temporary flag was not replaced as originally intended, and ended up being officially adopted in the new Constitution.

In fact, many countries have changed their flags in either minor or substantial ways.  Often this has followed constitutional or revolutionary change, such as the recent examples of Libya, Venezuela, Georgia, and Myanmar.

In terms of the Commonwealth, out of 53 member countries, only four (Australia, New Zealand, Fiji, and Tuvalu) outside of the UK continue to have some form of British ensign that includes the Union Jack.  It is interesting to note that the official flag of Hawaii also currently incorporates the Union Jack.  There have recently been discussions in Fiji regarding changing the flag, although, as in New Zealand, there are some concerns about the costs.  Tuvalu has not indicated that any changes are forthcoming.  While there have long been discussions about the flag in Australia, there has perhaps been a greater focus on whether the country should become a republic (a referendum on this issue was held in 1999).  There are currently no proposals from the government for a process to consider changing the flag.

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