tag:blogger.com,1999:blog-11340801.post112871779029769172..comments2023-10-06T16:45:25.381+13:00Comments on "Elephants and the Law" by Dean Knight: Electoral petitions: by-election or next highest polling candidate wins?Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-11340801.post-1128844834737701742005-10-09T21:00:00.000+13:002005-10-09T21:00:00.000+13:00Thanks for this fascinating discussion Dean (and G...Thanks for this fascinating discussion Dean (and Graeme)!<BR/><BR/>I don't suppose I could tempt you to have another go at explaining your exegesis of 55(g)? And how exactly the High Court's views about any matters beyond the putative winner's election being voided could poossibly enter into the matter?<BR/><BR/>Where I'm coming from:<BR/>I desperately want it to be a straightforward matter - election petition leads to declaration that the winner's election is void, which creates a vacancy, which means a by-election. End o' story.<BR/><BR/>On the one hand you seem to suggest that there's a gap in that chain at the final step - between a vacancy being declared and a by-election being held (assuming we're not close to the next elections or what not). But I don't see that there is under s.129 (assuming the Speaker's satisfied that there is a vacancy).<BR/><BR/>On the other hand you also seem to suggest a gap in the chain at it's second link: that the High court might be able to void the putative winner's election yet not the (electorate's) election as whole. But, again, I don't see it. The court makes a finding of the former sort alone (takes no position on the latter), and then the 55(g) chain kicks in: in virtue of the winner's election being voided, there's a vacancy, hence a by-election. <BR/><BR/>So I'm puzzled by what you say. Were you point to one problem or two? If two can you make either more plauisble. What am I not getting?<BR/><BR/>cheers. -- s.g.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-11340801.post-1128801630788968932005-10-09T09:00:00.000+13:002005-10-09T09:00:00.000+13:00Yes indeed - the principle of prior notice works i...Yes indeed - the principle of prior notice works in some cases but perhaps not in some others. Thinking out loud:<BR/><BR/>- I suspect the Court will be incredibly cautious in this area (courts (usually) hate *interferring* in the democratic process) and, if there's any doubt, it wouldn't surprise me to see a court turining it back to the people with a by-election.<BR/><BR/>- However, the prevailing principle in the UK seems to be focussed on whether voters' votes could be "thrown away" because they were cast with notice that there was a risk they might not count. At the end of the day, that *risk* arising in your 3 scenarios - although in the latter 2, there remained a prospect that the might still be a further opportunity to vote for another National candidate (vis vote against Peters).<BR/><BR/>I must say I was somewhat surprised to find that the courts have such a broad discretion when this arises (subject to the question of how these principles overlay our MMP based Electoral Act!). I had thought there would be a clear consequence without needing to "second-guess" the intentions of voters...Dean Knighthttps://www.blogger.com/profile/03069298298745322597noreply@blogger.comtag:blogger.com,1999:blog-11340801.post-1128722481857113072005-10-08T11:01:00.000+13:002005-10-08T11:01:00.000+13:00The facts of this case would appear to be similar ...The facts of this case would appear to be similar to the English cases you cite: Peters made it quite clear to everyone that he believed Clarkson had overspent, and that this could mean Clarkson's election would be voided.<BR/><BR/>The question then arises about whether what Peters was saying (and I don't really remember what it was, but suspect it differed slightly on each occasion he brought up the possibility) would prevent his reliance on this.<BR/><BR/>Contrast the following scenarios:<BR/><BR/>1) Peters says Clarkson's overspent and that if Clarkson wins on election day he might take an electoral petition to have Clarkson's election voided.<BR/><BR/>2) Peters says Clarkson's overspent and that if Clarkson wins on election day he might take an electoral petition to have the election voided.<BR/><BR/>3) Peters says Clarkson's overspent and that if Clarkson wins on election day he might take an electoral petition to force a by-election.<BR/><BR/>We operate on the assumption that the High Court does have the power to consider options, but if Peters himself has told people that there would be a by-election could he be estopped from arguing that there shouldn't be? If people believe (because of something Peters said) that electing Clarkson would at worst result in a by-election, despite the allegations of breaches of electoral law, should other intentions be ascribed to them?Graeme Edgelerhttps://www.blogger.com/profile/03928755583921638414noreply@blogger.comtag:blogger.com,1999:blog-11340801.post-1128718009954718002005-10-08T09:46:00.000+13:002005-10-08T09:46:00.000+13:00s55.How vacancies created— (1)The seat of any memb...<I>s55.How vacancies created—</I> <BR/>(1)The seat of any member of Parliament shall become vacant— <BR/>(a) If, otherwise than by virtue of being a head of mission or head of post within the meaning of the Foreign Affairs Act 1988, for one whole session of Parliament he or she fails, without permission of the House of Representatives, to give his or her attendance in the House; or (b) If he or she takes an oath or makes a declaration or acknowledgement of allegiance, obedience, or adherence to a foreign State, foreign Head of State, or foreign Power, whether required on appointment to an office or otherwise; or<BR/>(c) If he or she does or concurs in or adopts any act whereby he or she may become a subject or citizen of any foreign State or Power, or entitled to the rights, privileges, or immunities of a subject or citizen of any foreign State or Power; or <BR/>(ca)if he or she ceases to be a New Zealand citizen; or<BR/>(cb)if he or she accepts nomination as, or otherwise agrees to be, a candidate for election, or agrees to appointment as—<BR/>(i) a member of Parliament (or other governing body) of a country, State, territory, or municipality, in any country other than New Zealand; or <BR/>(ii) a member of any governing body of any association of countries, States, territories, or municipalities exercising governing powers, of which New Zealand is not a member (for example, the European Union); or<BR/>(d)If he or she is convicted of a crime punishable by imprisonment for a term of 2 years or upwards, or is convicted of a corrupt practice, or is reported by the High Court in its report on the trial of an election petition to have been proved guilty of a corrupt practice; or<BR/>(e)If he or she becomes a public servant; or<BR/>(f) If he or she resigns his or her seat by signing a written notice that is addressed and delivered to the Speaker; or<BR/>(g) If on an election petition the High Court or Court of Appeal declares his or her election void; or<BR/>(h) If he or she dies; or<BR/>(i) If he or she becomes mentally disordered, as provided in section 56 of this Act; or <BR/><BR/><I>s237. Avoidance of election of candidate guilty of corrupt practice—</I><BR/>Where a candidate who has been elected at any election is proved at the trial of an election petition to which section 229(3) of this Act applies to have been guilty of any corrupt practice at the election, his or her election shall be void.<BR/><BR/><I>s238. Avoidance of election for general corruption—</I><BR/>(1)Where it is reported by the High Court on the trial of an election petition that corrupt or illegal practices committed in relation to the election for the purpose of promoting or procuring the election of any constituency candidate or constituency candidates thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, the constituency candidate's election, if the candidate has been elected and is a respondent, shall be void.<BR/>(2)Except under this section, an election shall not be liable to be avoided by reason of the general prevalence of corrupt or illegal practices.<BR/><BR/><I>s243.Certificate of Court as to result of election—</I><BR/>At the conclusion of the trial of an election petition to which section 229(3) of this Act applies, the Court shall determine whether the member whose election or return is complained of, or any and what other person, was duly elected or returned, or whether the election was void, and shall forthwith certify in writing the determination to the Speaker, and the determination so certified shall be final to all intents and purposes.Dean Knighthttps://www.blogger.com/profile/03069298298745322597noreply@blogger.com