No, this isn't a post on Labour's leadership election (zing!) But it is about elections - more specifically, who can't take part in them.

A couple of electoral-law-related issues poked their heads above the ground in the last few days - one slightly ridiculous, the other somewhat more important.

First, the slightly ridiculous. Kim Dotcom's grand dream to found a political party and become an MP at the next election.

In an interview with the Washington Post's Brian Fung that focuses heavily on Dotcom's political plans, Dotcom said the following.

Brian Fung: From what I understand, as a German national you’re not able to run for parliament.

Kim Dotcom: When I made that statement, my lawyers were still looking into it, and their preliminary answer was that you can only run as a citizen of New Zealand. But they went through the full several hundred pages of New Zealand election law, and they found that if I’m a permanent resident of New Zealand who’s lived here for more than a year and is a registered voter — which I am will be in November — you can run for office. I’ll get more specifics on Tuesday when I sit with my lawyers, but at the moment it looks like I can run myself.

Now, others already have expressed a degree of (shall we say) complete and utter disbelief regarding this claim. So let me just add my voice to theirs and say that Kim Dotcom ain't going to be a candidate at the 2014 election. I've taken the liberty of putting the reason why in bold italics:

47 Registered electors may be members, unless disqualified

(1) Subject to the provisions of this Act, every person who is registered as an elector of an electoral district, but no other person, is qualified to be a candidate and to be elected a member of Parliament, whether for that electoral district, any other electoral district or as a consequence of the inclusion of that person’s name in a party list ... .

...

(3) Regardless of anything in subsection (1), a person is not qualified to be a candidate or to be elected unless he or she is a New Zealand citizen.

I have no idea what Dotcom's lawyers think they've discovered in "the several hundred pages of NZ electoral law" they've been wading through, but to my eyes s.47(3) is pretty much conclusive. Especially as the things Dotcom mentions ("a permanent resident of New Zealand who’s lived here for more than a year") are actually requirements to be permitted to register to vote under s.74(1), not candidacy per se. (Although, as s.47(1) states, actual registration is a pre-requisite to being qualified to be a candidate).

So - either Dotcom's lawyers have access to some special understanding of the Electoral Act 1993 that no-one else has, or Dotcom has misunderstood what his lawyers are telling him (that he will be able to register to vote come November), or he's spinning the media a line to try and make himself look like more of a player than he really is. I guess we'll find out later this week.

The second issue is a bit less fun, but also somewhat more serious. Four prisoners have teamed up to seek a judicial declaration that Parliament's decision to remove the right to vote from serving prisoners is inconsistent with the New Zealand Bill of Rights Act 1990. This could be a very interesting case to watch.

I say that not so much because of what it might tell us about the substantive question of whether the law was justifiable in Bill of Rights Act terms. It wasn't - as even Attorney-General Chris Finlayson said when the Bill first came before the House. So there is precisely zero chance that the Court is going to respond to this case by telling the claimants there is no inconsistency with the Bill of Rights Act because taking the right to vote from all sentenced prisoners is "demonstrably justified limit in a free and democratic society." Zero chance.

So what is the interest factor in this case, I hear you ask? Well, given that the Court is going to conclude that Parliament has enacted a law that removes individual rights in a way that cannot be demonstrably justified, what can it then do about that fact?

One thing it is told to do is see if it is able to read the law in a different way that doesn't limit the right at issue (or, at least, limits it in a lesser fashion). But, it is only to do this where it "can" give the law a different meaning - and that interpretative discretion doesn't extend to rewriting or twisting the words Parliament has used beyond the meaning that they reasonably carry. So where Parliament has been clear about what it wants, then the courts can't stop Parliament getting it by making the statute say something different.

(For the record, the Electoral Act 1993, s.81(1)(d) states that a person may not register to vote if she or he is "a person who is detained in a prison pursuant to a sentence of imprisonment imposed after [15 December 2010]." I'll again simply state that there is zero chance that a NZ court will read this as meaning anything other than what it says; if you're in jail serving your sentence, you don't get to go on the electoral roll. Zero chance.]

What, then, if the court can't read the law in a way that makes the rights inconsistency go away? Well, the New Zealand Bill of Rights is clear about this, too. The job of the courts is to apply the law as Parliament has made it, and they can't refuse to do so or deem that law to be invalid just because they think it imposes some limit on individual rights that cannot be justified.

So, then, if the courts won't be able to read this law in a way that allows prisoners to register to vote, and the courts will then have to apply the law anyway, isn't the prisoner's case just a waste of time and effort? Perhaps so, but there's one last possible thing that the courts may be able to do. They may be able to issue a formal "declaration of inconsistency", to the effect that the legislation Parliament has enacted falls short of the standards set by the Bill of Rights Act.

Two caveats to the above. First, I couch the matter in terms of "may be able to" because it's not totally certainty that the courts actually have this remedial power. The Bill of Rights Act does not expressly give it. And the Crown has always opposed such a power any time the courts have been asked to exercise it. Finally, while the courts have hinted that they believe that this remedial tool is in their garage, they've always managed to find procedural grounds for refusing to consider using it when asked.

However, those sorts of procedural grounds really aren't at issue here. The prisoners are putting the issue front and center by directly asking the Court to look at how the law is affecting them and other prisoners, assess whether the impact on their rights can be justified (which it can't), and then issue a formal declaration to that effect. If the Court refuses to do so in this situation, then I think that pretty much puts an end to the possibility of a declaration as a potential remedy in Bill of Rights Act cases.

So that's a point of interest for us public law scholars.

Second, remember that any declaration that the Court may issue would be no more than a formal judicial finding that the law barring prisoners from voting is an unjustifiable infringement of their individual rights. It would not alter the legal status of that ban - as stated above, the Bill of Rights Act cannot be used to invalidate another act of Parliament. And Parliament doesn't then have to take any notice of the Court's views (although you can be sure the existence of the declaration would be a bit of an annoying embarrasment to it).

So as a potential remedy, the declaration of inconsistency is limited. Exactly how powerful it is, I think, will depend upon how it is reported. If it is picked up as the courts "slamming" Parliament for trampling over the human rights of New Zealanders, then it may have some effect in pushing Parliament to revisit the issue. However, it could just as easily be pooh-poohed as elitist judges interfering in Parliament's business and daring to tell the people's representatives how they ought to be running the country. Or, it could be totally ignored altogether.

So that will be interesting to watch, too.

Comments (18)

by Tom Semmens on September 09, 2013
Tom Semmens

Ah, but to act as devils advocate - what if Kom Dotcom stood anyway and won a seat? Are we to believe the will of the people is to be thwarted, the power of the electorate fettered, by s.47(3)? It would be interesting (given Dotcom's ability to play the media) to see how that palyed out.

by Kyle Matthews on September 09, 2013
Kyle Matthews

Tom, in order to win a seat his name will need to appear on the ballet paper. Which it won't. He can play that out in the media, but there's no electoral victory to play out.

by Graeme Edgeler on September 09, 2013
Graeme Edgeler

if you're in jail serving your sentence, you don't get to go on the electoral roll. Zero chance.

What if you are in jail serving a life (or other long) sentence that was imposed before the prisoner disqualification law came into effect, but you are only in prison only because you were recalled to prison after the law came into effect (and you on parole at the time the law came into effect)? Aren't you then entitled to go on the electoral roll?

by Simon Connell on September 09, 2013
Simon Connell

Exactly how powerful it is, I think, will depend upon how it is reported.

Overseas reporting of a declaration might also have some impact - it could be embarrasing enough to cause Parliament to revisit the issue. Especially since we like to tell other Pacific nations off if we don't think they're being democratic enough.

by Andrew Geddis on September 09, 2013
Andrew Geddis

@Tom,

As Kyle says, the fact pattern you suggest can only come into being by Dotcom lying to the electoral authorities and getting onto the ballot under false pretences. Which, given his high public status, is somewhat unlikely to happen.

Also, the Electoral Act 1993, s.27 states "The House of Representatives shall have as its members those persons who are elected from time to time in accordance with the provisions of ... this Act" (see also the Constitution Act 1986, s.10(4)). So a person elected to Parliament other than in accordance with the Electoral Act 1993 (i.e. without being qualified to be a candidate) cannot be a member of Parliament.

Finally, we sort of know what would happen. Kelly Chal

@Kyle,

I'd love to vote in an election that has "ballet paper[s]" ... it would be a real song and dance affair (thank you! thank you! I'm performing all week).

@Graeme,

I refer you to this comment thread, discussing the point at which pedantry becomes an exercise in steadily diminishing returns.

by Andrew Geddis on September 09, 2013
Andrew Geddis

Overseas reporting of a declaration might also have some impact - it could be embarrasing enough to cause Parliament to revisit the issue. Especially since we like to tell other Pacific nations off if we don't think they're being democratic enough.


Quite possibly. Also, as I/S points out, the matter may also go outside of NZ to the UN's Human Rights Committee - where more embarrassment may result.

by Graeme Edgeler on September 09, 2013
Graeme Edgeler

@Graeme I refer you to this comment thread, discussing the point at which pedantry becomes an exercise in steadily diminishing returns.

I wasn't aiming for pedantry, or to correct you. I'm trying to work out if there is in fact a category of long-term prisoners who are required to enrol and are entitled to vote: people who would have been unable to vote under the old law, but able to vote under the new: sort of like J'accuse but narrower. Have been filing OIAs over it, but haven't gotten very far yet.

by Phil Lyth on September 09, 2013
Phil Lyth

For what is is worth, I reckon there is a credible scenario in which a person could be an MP in the remainder of the 50th Parliament and at the same time being in jail.

by Phil Lyth on September 09, 2013
Phil Lyth

More to the point,  the Government in last week's Business Statement signalled an intent to debate next week the 1st Reading of the Electoral Amendment Bill.

by Graeme Edgeler on September 09, 2013
Graeme Edgeler

For what is is worth, I reckon there is a credible scenario in which a person could be an MP in the remainder of the 50th Parliament and at the same time being in jail.

It's certainly possible, but feel free to elaborate on the particulars :-)

by Graeme Edgeler on September 09, 2013
Graeme Edgeler

More to the point,  the Government in last week's Business Statement signalled an intent to debate next week the 1st Reading of the Electoral Amendment Bill.

It includes a fix to Paula's Peril, so I might ask them to fix section 55(1)(g) while they are at it.

Are you suggesting that this bill could be used to reinstate the prisoner franchise?

by Phil Lyth on September 09, 2013
Phil Lyth

It includes a fix to Paula's Peril, so I might ask them to fix section 55(1)(g) while they are at it.

Are you suggesting that this bill could be used to reinstate the prisoner franchise?

Please remind me of the problem with 55(1)(g) - is it that a candidate whose election to an electorate is void might still be able to be elected to a list seat?

 

Re the franchise, I wasn't suggesting that, nor expecting it, but yes the bill could be used to do that in theory. 

by Graeme Edgeler on September 09, 2013
Graeme Edgeler

Please remind me of the problem with 55(1)(g) - is it that a candidate whose election to an electorate is void might still be able to be elected to a list seat?

That's (one of) the problems they are fixing. The one they aren't (yet) fixing is that s 55(1)(g) states that there is a vacancy when the election of an MP is voided at an election petition. Except, if the seat of an MP becomes vacant, there has to be a by-election (or list replacement, as the case may be).

E.g. MP 1 elected on final count. MPs sworn in. Election petition occurs, turns out actually MP 2 from another party got more votes. MP 2 is declared elected. The election of MP 1 is voided. This falls within the definition of vacancy in section 55. What happens when there is a vacancy? A by-election. But MP 2 is still an electorate MP for the seat.

by Andrew Geddis on September 09, 2013
Andrew Geddis

The one they aren't (yet) fixing is that s 55(1)(g) states that there is a vacancy when the election of an MP is voided at an election petition. Except, if the seat of an MP becomes vacant, there has to be a by-election (or list replacement, as the case may be).

Hmm ... not sure this is right.

For one thing, it ain't how things have happened in the past - when Reg Boorman's "win" was overturned on an election petition back in 1988, Wyatt Creech came into Parliament immediately without any by-election as he was found by the Court to be the candidate who actually won the most votes. Maybe the 1956 Act was different in its wording, but I'm pretty sure it won't have been.

For another, I wonder if the reading you propose doesn't confuse the Court "declaring another person has won" with "declaring a candidate's election void". Here's what s.247 says:

At the conclusion of the trial of an election petition to which section 229(3) 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 ... .

That makes it clear that s.55(1)(g)'s "the High Court or Court of Appeal declares his or her election void" is but one possible outcome of an election petition. The other is that after doing a proper count of the votes (and deciding on the right of individual voters to cast them), the Court declares another candidate to be "duly elected" because she or he won the most votes, without then voiding the election. And in that latter case, there is no "vacancy" that needs filling, because there is a candidate who has been elected in accordance with the Electoral Act. It's just not the candidate who currently is sitting as an MP (and has sat as an MP since the election result was declared).

In other words, maybe we're reading the Electoral Act, s.55 wrong. We've been treating it as comprehensively setting out the situations in which a person ceases to be an MP. But maybe it isn't that at all - maybe it's just setting out the situations in which a person ceases to be an MP and then you need to have a way of replacing them ... so s.55 is merely the trigger for requiring a by-election (or next person on the list to replace him or her). 

How, then, I hear you ask does an MP who was "wrongly" elected cease to be an MP outside of s.55? Well, through the general application of s.27 ... she or he is not a "person who [has been] elected ... in accordance with the provisions of ... this Act." So even if she or he has sworn the oath to be an MP, she or he lacks the legal right to be (and remain) a member of the House.

by Graeme Edgeler on September 09, 2013
Graeme Edgeler

I always read s 245 as giving the court two options: a person was duly elected/returned or the election was void, but that reading would certainly help avoid issues, so I accept it would probably be adopted.

by Andrew Geddis on September 09, 2013
Andrew Geddis

In addition to s.243 (not 247, as I mistakenly labled it above), there's also s.246(2):

On being informed by the Speaker of the certificate and any report of the court, the House of Representatives shall order the same to be entered in the Journals of the House, and shall give the necessary directions for confirming or altering the return, or for issuing a writ for a new election, or for carrying out the determination, as the circumstances may require.

So that seems pretty dispositive - if the Court says in its certificate that your MP2 actually got more votes than the (presently sitting) MP1, then the House can just change the election return to say that MP2 was elected. Hence, no vacancy as per s.55(1)(g), and no triggering of the by-election requirement.

by william blake on September 13, 2013
william blake

It seems that Kim-dot-com has instructed his lawyers to find a loop hole in the electoral law that would allow him to stand for parliament, much in the way he has generated his fortune by exploiting copyright law loopholes.

Would we want someone like this in Parliament?

Im sure if Kim-dot-com rose to power through these methods he would simply change laws that did not suit him, and we could not possibly tolerate that.  oh hang on...

by Danielle Thompson on January 23, 2014
Danielle Thompson

Hi Andrew

Do you know whether the judicial declaration has been made yet on the Parliament's decision to remove the right to vote from serving prisoners is inconsistent with the New Zealand Bill of Rights Act 1990?

Being an ex Otago student but now residing in Australia I am also interested to hear your thoughts of whether you think there is a potential constitutional challenge in relation to the requirement that you must have returned to New Zealand in the past three years in order to be eligible to vote.

Thanks

Dani

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