The MMP system

The MMP system combines members of Parliament elected from single-member electoral districts with members elected from nationally drawn party lists. It is designed to produce a legislature whose overall party composition is approximately proportional to the nationwide support for each political party contesting the election.

MMP was recommended for parliamentary elections by a Royal Commission which reported in 1986. [4]   An indicative referendum was held in September 1992 at which voters were asked whether they wished to retain FPP or to change to another (unspecified) system. At that same referendum (and regardless of whether an individual voter wished to see a change in the voting system) voters were asked which one of four alternative forms of voting they would prefer to be adopted if there was a change in the system. A large majority of those voting favoured a change in the voting system, and the most clearly favoured option was MMP.

A further referendum was held on 6 November 1993 (simultaneously with the general election of that year). This was a straight run-off between FPP and MMP. A majority of those voting (53.9 percent) favoured MMP. [5]   Under the legislation governing the holding of the referendum, [6]   this result was binding in that the vote for MMP automatically repealed the previous electoral law and a new electoral law was brought into effect (subject to a transitional period extending up to the next election due in 1996). This process of holding a binding referendum on a proposed alternative system that is fully prescribed in legislation was designed to satisfy the requirement of the law that certain important ingredients of the electoral system, known as “reserved provisions”, can be amended or repealed only by a majority of the valid votes cast at a poll of all electors. [7]  

In order to ensure that there is not a plethora of minor parties represented in the House, a threshold of five percent is set as a minimum proportion of votes that a party must ordinarily win nationally in order to be entitled to seats in the House. But the system, whilst ensuring party proportionality, also combines an element of constituency representation by providing that over half the members of Parliament are elected directly in single-member electoral districts (on a FPP basis). Thus, each voter has two votes: one for a constituency member and the other for a political party. Once the constituency members and their party affiliations are known, the membership of the House is topped up with candidates drawn from party lists to produce overall proportionality.

Electoral Commission

The 1993 legislation created a body to oversee the registration of political parties for the purposes of conducting the nationwide party vote. This body is the Electoral Commission. [8]   In addition to registering parties, the commission carries out a number of other duties in regard to the electoral system, such as supervising parties’ compliance with financial disclosure and election expenses requirements and allocating funding and time for election broadcasting. It has a general function of promoting public awareness of electoral matters by conducting educational and informational programmes and it reports to the Minister of Justice and the House on electoral matters referred to it by the Minister or the House. [9]   The commission has assisted parliamentary select committees with their post-election reviews of general elections and their consideration of changes to the electoral law. However, the commission does not administer all aspects of the electoral system – the Representation Commission draws up electoral boundaries, the Chief Registrar of Electors (the chief executive of New Zealand Post Limited) is responsible for the registration of electors, and the Chief Electoral Officer (an official of the Ministry of Justice) is responsible for the actual conduct of elections, the supervision of candidates’ election expenses and donations, and the application of the electoral law generally.

The Electoral Commission’s membership consists of: the Secretary for Justice; the Chief Judge of the Maori Land Court; a judge or retired judge of the District Court, the High Court, the Court of Appeal, or the Supreme Court (who is appointed by the Governor-General from a list nominated by the Chief Justice and is automatically president of the commission), and a person appointed by the Governor-General to be its chief executive. [10]   The commission’s membership is supplemented for the purposes of its election broadcasting functions by two members nominated by the House, one to represent the Government and the other to represent opposition parties. [11]   These latter two members can only be removed from office for just cause by the Governor-General acting on an address from the House. [12]   The Electoral Commission must act independently in performing its statutory functions and duties and exercising its statutory powers. [13]   For governance, reporting and accountability purposes the commission is classified as an independent Crown entity (a Crown entity that is generally independent of government policy). [14]   In addition, the commission has taken steps to assert its independence from effective control by other regulatory bodies. Thus it has been established that the exercise of its statutory public information functions is not subject to an industry body effectively substituting its views for those of the commission. [15]  

Review of the electoral system

Since 1981 a select committee has had electoral matters within its terms of reference. Until 1999 this was through an ad hoc Electoral Law Committee established in each Parliament. Since 1999 electoral matters have been linked with justice issues in the terms of reference of one of the subject select committees – the Justice and Electoral Committee. [16]   This committee considers any electoral legislation that may be referred to it and through its estimates and review work may receive information on the administrative support available for the electoral system.

An interdepartmental committee of officials chaired by the Chief Electoral Officer takes an overall look at election administration. Following the 1999 election three separate governmental reviews of aspects of the electoral process were conducted. [17]   The three major agencies concerned with elections (the Electoral Commission, the Electoral Enrolment Centre and the Electoral Office) report to the Justice and Electoral Committee after each election. Their reports form the starting point for the select committee to initiate an inquiry into the election. Officials from the Ministry of Justice (including the Chief Electoral Officer), the Electoral Commission and New Zealand Post Limited work closely with the Justice and Electoral Committee in helping it to carry out its work. The committee’s report or reports lead directly to the preparation of amending legislation to remedy any defects in the electoral process that are identified.

In addition to the regular post-election review carried out by the Justice and Electoral Committee, the House was obliged to establish a committee as soon as practicable after 1 April 2000 to carry out a statutory review of the MMP electoral system. [18]   This committee was required to report on the method by which New Zealand is divided into electoral districts, the provisions for Māori representation and whether there should be a further referendum on electoral reform. An ad hoc committee was established for this purpose, with a remit that went further than the terms of the statutory inquiry and included inquiring into the appropriate number of members of Parliament and whether there should be further legislative measures to support or enhance parliamentary representation of women or ethnic minorities. The committee, which was chaired by the Speaker, was required to reach its conclusions on the basis of unanimity or, if this was not possible, near unanimity, having regard to the numbers in the House. [19]   The MMP Review Committee was unable to achieve unanimity or sufficient near-unanimity on a number of significant issues and supported the status quo in regard to most of the matters on which it could achieve consensus. [20]  

General electoral districts

There are 16 general electoral districts in the South Island. [21]   The number of electoral districts in the North Island is calculated by dividing the general electoral population of the South Island (the total number of persons ordinarily resident there at the time of the last census, less the Māori electoral population) by 16. [22]   The figure so obtained is known as the quota for the South Island. The function of the quota is to provide a degree of numerical equality in the electoral population of each electoral district. The general electoral population of the North Island is divided by the quota, thus giving the number of general electoral districts in the North Island. [23]   (A fraction is rounded up or down for this purpose to the nearest whole number.) Thus the two islands each have numbers of general electoral districts that are equivalent to their general electoral populations. While there will always be 16 general electoral districts in the South Island, the number of such districts in the North Island will go up or down depending upon relative population movements between the islands and the number of Māori electoral districts that are created.

Māori electoral districts

Four Māori electoral districts were created in 1867 to provide Māori with parliamentary representation. [24]   The number of Māori electoral districts remained at four until the 1996 election. There is now no set number of Māori electoral districts. The total number of Māori electoral districts is calculated from the Māori electoral population. This is the number of persons who have registered to vote in Māori electoral districts plus a figure to represent an appropriate proportion of the estimated number of persons of Māori descent who have not registered as electors at all or who are under 18 years of age. [25]   The Māori electoral population is divided by the South Island’s quota and the resulting figure gives the total number (over both the North and the South Islands) of Māori electoral districts. [26]   (Again, fractions are rounded up or down to the nearest whole number.) The number of Māori electoral districts will therefore largely be determined by the number of Māori who choose to enrol to vote in a Māori electoral district. At the 1996 election there were five Māori electoral districts and this increased to seven for the 2002 election.

Party lists

The members elected from party lists are additional to the members elected from general and Māori electoral districts. Party list seats are awarded in accordance with a formula designed to ensure that each party’s total number of members is approximately equal to its share of the party vote for it at the election.

Generally these members will take the total number of members up to 120. However, this figure could be exceeded: if a party’s constituency candidates win more seats than its national party vote entitles it to, it retains the seats it has won but is awarded no party list seats. [27]   It may also not be reached: if a party’s share of the vote entitles it to more party list seats than it has nominated candidates for, those seats are not filled. [28]  

Representation Commission

The job of dividing New Zealand into the ascertained number of electoral districts falls to a statutory body, called the Representation Commission, which meets every five years following each national census.

The Representation Commission was first established in 1887. [29]   The creation of an independent commission to draw up electoral boundaries (work previously carried out by Parliament itself) has been called one of the most significant landmarks in New Zealand’s electoral history. It became a model for the development of similar commissions in the United Kingdom and Australia. [30]  

The Representation Commission for the purposes of determining the boundaries of general electoral districts consists of seven members. Four persons are members by virtue of their offices: the Surveyor-General, the Government Statistician, the Chief Electoral Officer and the Chairperson of the Local Government Commission (who does not have a vote). Two further members are appointed by the Governor-General on the nomination of the House, one to represent the Government and one to represent the opposition. The final member is appointed by the Governor-General as chairperson on the nomination of the members of the commission or of a majority of them. [31]  

When the commission is determining Māori electoral districts, its membership is supplemented by three further members. One of these is the chief executive of Te Puni Kōkiri (the Ministry of Māori Development). The other two (who must each be Māori) are appointed by the Governor-General on the nomination of the House, one to represent the Government and one to represent the opposition. [32]  

None of the commission’s nominated members can be a member of Parliament.

Any political party to which a member of Parliament belongs, any independent member of Parliament and any party whose candidates obtained at least five percent of the votes cast at the last general election may make submissions to the commission. [33]   Any party which obtains five percent of the votes will, by definition, have members of Parliament belonging to it.

The commission deliberates in private. It is accepted, however, that those comm-issioners nominated to represent government and opposition parties have a particular need to consult with and take advice from those that they represent. In general, the commission relies on their integrity and discretion. But it has adopted rules to guide commissioners in how consultation could proceed in an endeavour to achieve a workable balance between the need to consult and the need to maintain confidentiality. [34]  

Boundaries

In principle, the commission attempts to draw electoral boundaries so that an equal number of electors is contained within each district. This will never be entirely practicable, so the commission is allowed to deviate from mathematical equality by drawing electoral boundaries for general electoral districts which contain up to five percent more or less of the general electoral population than the average for the districts within each island, [35]   and to allow a similar percentage deviation by reference to the Māori electoral population for any Māori electoral district. [36]  

The commission is obliged, when drawing new boundaries, to give due consideration to existing boundaries, community of interest, communications facilities, topographical features and any projected variation in the electoral population of the districts during their life. In the case of Māori electoral districts this includes community of interest among Māori people generally and members of Māori tribes. [37]  

The commission publishes details of its provisional proposals in the New Zealand Gazette, and persons have at least one month from such publication to lodge objections to them. Objections received by the commission are also published, and the public is given at least two weeks to lodge counter-objections. The commission is obliged to consider these objections and counter-objections before coming to a final decision on boundaries. [38]   But it may change its provisional proposals without regard to whether these have been the subject of objections. [39]   Within six months of its being convened, the commission must deliver its final report to the Governor-General and publish it in the Gazette. No appeals or objections are possible after that point. The redrawn boundaries thereupon become the electoral districts for subsequent general elections until superseded by a new commission determination in five years’ time. [40]   Thus, depending upon the timing of the census and subsequent elections, one or two general elections will be fought on the basis of boundaries determined by each Representation Commission’s report.

Any by-election occurring between the publication of the new boundaries and the next general election continues to be fought on the old boundaries.

Registration

The first step towards securing the right to vote at an election is to register as an elector.

Registration within one month of becoming qualified to vote in an electoral district is compulsory. [41]   All persons of or over the age of 18 years who are New Zealand citizens or permanent residents of New Zealand and have resided continuously at some time for not less than one year in New Zealand are qualified to register as electors. (A permanent resident is a person who is lawfully resident in New Zealand and who is not subject to any immigration restriction. [42]   ) The electoral district in which a person qualifies to register is that district in which he or she last resided continuously for at least one month or, where the person has never resided continuously for one month in any electoral district, the district in which he or she now resides or last resided. [43]   A person is entitled to be registered in only one electoral district at a time. However, a person’s registration in a new district in which he or she has recently become qualified to vote is not invalidated merely because that person remains registered in the old district (though the old registration must have been cancelled by the time of the next election to entitle that person to vote). [44]   New Zealand citizens who have not been in New Zealand for three years and permanent residents who have been absent for 12 months (in each case other than through absence on a diplomatic mission or in the armed forces) lose their qualification to register as electors. Also disqualified as electors are certain persons detained in a hospital as a result of mental disorder or intellectual disability, persons detained in a penal institution and serving a life sentence, preventive detention or a sentence of more than three years’ imprisonment, and persons who have been convicted of a corrupt electoral practice within the last three years. [45]  

Registration is effected by making an application on the prescribed form to a registrar of electors (an employee of New Zealand Post Limited). [46]   The registrar then includes the elector on the electoral roll for the appropriate electoral district. Electors who have registered by writ day for an election are included on the printed electoral roll produced for polling day. Electors who register after writ day do not appear on the roll but may cast a special declaration vote. No registration is permitted on polling day itself.

Māori option

A Māori, or a descendant of a Māori, may register as an elector of either a Māori electoral district or a general electoral district. A Māori may exercise the option of enrolling in either type of district when first qualifying and registering as a voter and may opt to transfer to the other type of electoral district at the time of each five-yearly census. [47]   No transfer between rolls may be effected between censuses. [48]   Between February and April 1994 there was a special opportunity to exercise the option to transfer between the rolls for the purposes of drawing boundaries for the new MMP system. [49]   In regard to that special option to transfer, the Government was held to have had a duty to publicise the option at a level that was reasonable having regard to the position of Māori in society and the unsatisfactory number of Māori enrolled to vote. [50]   This obligation to take adequate steps to publicise the option may apply in respect of the regular quinquennial option also.

Electoral rolls

In 2002 it was estimated that 94.17 percent of the eligible voting population had actually enrolled. [51]   Enrolment in New Zealand compares favourably with enrolment rates achieved overseas. [52]  

Lists of persons registered as electors are printed periodically on electoral rolls under the direction of the registrar of electors for each electoral district. The “electoral roll” for any district is technically a compilation of completed registration application forms held by the registrar of electors. [53]  

Persons who can show that publication of their names and addresses could be harmful to their safety or the safety of their families may apply to the Chief Registrar for registration on an unpublished roll. [54]   At the time of the 2002 election, for example, there were 6,508 persons on the unpublished electoral roll. [55]   Such persons cast special declaration votes at an election.

Candidates

Campaign

How parties and candidates conduct their electoral campaigns is, within the constraints of the law against corrupt practices (for example, bribing, threatening or intimidating voters) and illegal practices (for example, restrictions on advertisements promoting candidates unless they make it clear that these are officially authorised), largely over to them. School premises may be used free of any rental charge for the purposes of candidates’ meetings, [107]   and meetings at other venues within each electoral district will be held by candidates. Candidates are required to obtain express permission before entering onto defence property for any purpose during the campaign. [108]   The shape, colour, design and layout of advertisements promoting a party or a candidate that are displayed in a public place or on private land must conform with prescribed conditions. These restrictions do not apply to newspaper and periodical advertising or to handbills and small posters. [109]   Complaints that offences have been committed in respect of the campaign rules are made to the Chief Electoral Officer, who may deal with the matter informally or refer them to the police. [110]  

No campaigning is permitted on polling day itself.

Most parties will publish election manifestos setting out their policy intentions should they become the Government or describing how they will act if their members are elected to Parliament. Promises made in election manifestos are not regarded as being legally binding, [111]   though if an election promise was shown to be sufficiently seriously misleading it could conceivably constitute electoral fraud and therefore give grounds for challenging the election result. [112]   However, this must be regarded as an extreme circumstance. Most importantly, the campaign, particularly nationally, will be fought out through the news media – print, radio and television.

Election broadcasting

Since the 1990 general election there has been a statutory regime governing parliamentary election broadcasting, including the provision of broadcasting services by the State-owned broadcasters Television New Zealand Limited and Radio New Zealand Limited. This regime does not apply in respect of a paid broadcast promoting the election of an individual candidate in a particular electoral district. Apart from this circumstance it is unlawful to broadcast an election programme, either during the election campaign or outside the period of the campaign, except as approved in terms of the legislation. [113]   It is also unlawful to broadcast election programmes on television between 6 am and noon on a Sunday or Anzac Day or to broadcast such programmes at all on television or radio on Christmas Day, Good Friday or Easter Sunday. [114]  

The allocation of time and money for election broadcasting has been carried out by the Electoral Commission since 1996 (the task was formerly discharged by the Broadcasting Standards Authority). For the purpose of carrying out its broadcasting duties the commission’s membership is augmented by two members appointed on the nomination of the House. One is appointed to represent the Government, the other to represent opposition parties. [115]   While there may be some preliminary consultation among the parties represented in the House about who these representatives will be, there is no formal consultation requirement under the legislation and ultimately the nominations are settled politically by decision of the House. [116]  

Pre-election economic and fiscal update

Between 20 and 30 working days before each general election (10 working days if there is an early or snap election), the Minister of Finance is obliged to publish a report containing an economic and fiscal update prepared by the Treasury. The update must contain forecasts of movements in key economic data for New Zealand and projections of the Crown’s financial position. These forecasts relate to the financial year in which the report is prepared and the two following years. [144]  

The obligation to publish an official pre-election economic and fiscal update took effect in respect of general elections held after 1 July 1994. For the general election held in November 1993 the Government voluntarily published such a report.

Election expenses

For each constituency candidate at a general election, expenditure on certain defined election activities promoting the candidate’s election in the three months preceding polling day is limited to $20,000 (including goods and services tax). [145]   These activities (carried out by a candidate or with a candidate’s authority) comprise: advertising, radio or television broadcasting and publishing materials such as notices, posters, pamphlets and billboards. To constitute an election activity the advertising or material must relate to the candidate in that capacity (and not to a person’s capacity as a member of Parliament, for example) or must encourage or persuade voters not to vote for another candidate or party. [146]   There is provision for apportioning expenditure on activities carried on both before and after the three-month period [147]   and between two or more candidates where a single activity (for example, a joint advertisement) is intended to promote the election of more than one candidate. [148]  

Within 70 working days after polling day, each candidate must submit to the Chief Electoral Officer a return of election expenses and details of all donations exceeding $1,000 made by persons to the candidate. [149]   These returns must be retained by the Chief Electoral Officer and made available for public inspection. [150]   The candidate’s election deposit cannot be returned until this return of election expenses has been made. [151]  

Registered parties are also limited as to the amount of election expenses that they may incur on specified election activities promoting the party in the three months leading up to polling day. Such activities comprise actions taken to promote a party and to encourage voters to vote for it or not to vote for another party. [152]   The permitted party spending limit is $1,000,000 plus $20,000 (inclusive of goods and services tax) for each constituency candidate standing in the party’s name. [153]   Expenses incurred in respect of an election activity carried on both before and within the three months immediately preceding polling day may be apportioned so that only that proportion of the expenses relating to activities carried on within the three-month period are counted against the spending limit. [154]  

Each party secretary must forward an audited return of election expenses to the Electoral Commission within 50 working days of the declaration of the result of the election. [155]   The Electoral Commission may prescribe the precise form in which such a declaration is to be made, including requiring the categorisation of election expenses by particular activities. [156]   No election deposit may be returned to a party until this return has been made. [157]  

The failure of a candidate or a party to make a return of election expenses and the making of a false return by any candidate or party are offences. In addition, an elected member is liable to a fine for each day on which he or she sits or votes in the House while the return remains outstanding. [158]   The House has ordered an inquiry into the disclosure of campaign spending by a party where concerns were raised as to whether it had made full disclosure. [159]  

Administration of the election

The official responsible for conducting the election is the Chief Electoral Officer. [160]   The Chief Electoral Officer is an employee of the Ministry of Justice and, as such, is under the direction of the Minister of Justice and the Secretary for Justice. However, a convention has developed that the Minister and the ministry do not provide directions to the Chief Electoral Officer in the discharge of that officer’s electoral functions, though they may communicate their views on those functions. [161]   The Chief Electoral Officer must designate a Returning Officer for each electoral district. Each Returning Officer, subject to the Chief Electoral Officer’s control, makes the detailed arrangements for the conduct of the poll and the count of votes in each district. In practice, all Returning Officers follow detailed national standards and processes prescribed by the Chief Electoral Officer. State sector agencies are under an obligation to provide the Chief Electoral Officer with assistance in the conduct of elections, [162]   and state servants together with other persons are recruited to perform duties as election officials. The Chief Electoral Officer establishes polling places (such as at schools and church halls) for voting in respect of each electoral district. At least 12 polling places must be established within each electoral district with access that is suitable for people with disabilities. Subject to this requirement, polling places may be established for a district even though they are actually located outside the district. [163]  

Uncontested elections

If there is only one candidate nominated for an electoral district or if all candidates withdraw leaving only one candidate for the district, that candidate is declared elected and no poll is held for that seat (a party-vote poll will still be held). [164]  

A member has not been returned in this way since 1943, when two members who were overseas on war service were elected unopposed. [165]  

Voting

In almost all circumstances there will be more than one candidate for election as the constituency member for the district, and, in any case, a party list vote needs to be held in every electoral district. A poll will therefore be held. Persons who are lawfully registered as electors in a district are entitled to vote at any election held in that district.

The ballot paper for a general election has two parts to it and an elector has two votes. On the left-hand side of the ballot paper a voter casts a party vote for the party of his or her choice. On the right-hand side the voter casts a vote for a candidate for the electoral district. Candidates are arranged on the ballot paper in alphabetical order. Party affiliations are printed next to the candidates’ names. Where a registered party has a constituency candidate its party name appears on the party vote side of the ballot paper opposite to that candidate’s name. Where a candidate for the electoral district (such as an independent) does not have a corresponding party standing for the party vote, the space on the party vote side of the ballot paper is left blank. Parties without individual constituency candidates are then arranged alphabetically on the party vote side of the ballot paper below parties with candidates. [166]  

Voting is carried out in secret at a polling place on a Saturday between 9 am and 7 pm. The voter votes by placing a tick in a circle at the right of the name of the party or candidate (as the case may be) for whom the voter wishes to vote. [167]  

Special voting

New Zealand first made provision for absentee or “special” voting in 1890 (for seamen). A general right to cast an absentee vote was introduced in 1905 and voting by post was first permitted in 1928. [168]  

Regulations allow persons who will be absent from New Zealand or their own electoral district on polling day, or will otherwise be unable (for example, because of illness or infirmity) to vote at a polling place within the district, to vote by special vote. [169]   This includes casting a special vote within a specified period before polling day (for example, where the elector is intending to go overseas shortly before the election). To cast a special vote, the elector must make a written application to an official authorised to issue special ballot papers. [170]   Effectively, electors may vote at any polling place in New Zealand, though they are encouraged to vote at a polling place within their own electoral district.

Special ballot papers may be issued by electronic means to persons outside New Zealand (but the ballot paper must be returned by conventional means, including facsimile transmission). [171]   Completed special ballot papers are sealed and deposited in a ballot box. A high proportion of special votes has been disallowed in the past mainly because the elector was not enrolled. For example, 15 percent of candidate and seven percent of party special votes cast at the 2002 general election were disallowed. [172]   Special votes have also been disallowed through a voter voting for a constituency candidate in an electoral district in which the voter was not enrolled. Since the 2002 election a voter who votes for a candidate in an electoral district in which the voter is not enrolled has the party vote counted rather than the entire vote disallowed. [173]  

Turnout

Turnout at New Zealand elections is traditionally high. A survey of elections held between 1945 and 1997 found that New Zealand, along with Iceland, had, at 89 percent, the highest turnout among countries where voting is not compulsory. Only some countries with compulsory voting scored higher (Australia’s, for example, was 94 percent) and even countries with compulsory voting had lower turnouts than New Zealand’s. [174]   However, there is evidence of some decline in recent years. Average voting-age population turnout (not the same thing as registered voter turnout) was estimated at 80.4 percent in the four elections 1990–1999. [175]   At the 2002 election registered voter turnout was 77 percent, probably the lowest authenticated figure since 1902. (Turnout at the 1978 election was officially recorded as 69.15 percent but the electoral rolls contained considerable duplication of electors. A more realistic estimate for turnout at that election is 79.86 percent. [176]   ) The overall turnout figure can also disguise considerable differences between the turnout of voters enrolled on the general roll as opposed to the Māori roll. Turnout of voters on the Māori roll was only 58 percent in 2002. [177]  

Counting of votes

In respect of votes delivered to a Returning Officer before polling day (advance ordinary votes), the Returning Officer may, if authorised by the Chief Electoral Officer, conduct a preliminary count of such votes beginning after 3 pm on polling day. [178]   The votes must be counted in a restricted area from which persons who enter (officials and scrutineers) may not leave without the Returning Officer’s permission until the close of the poll and no information about the results of the count may be communicated to any non-authorised person. [179]  

After the polls have closed, the manager of each polling place conducts a count of the votes cast for each candidate and for political party lists. [180]   The aggregate totals from these preliminary counts are communicated to the Returning Officer for the electoral district and are entered into a national results system controlled by the Electoral Office. The results are fed to the media and placed on a website. Together with any advance vote totals, these form the basis of provisional election results released during the course of the evening of polling day. All ballot papers are then sent to the Returning Officer.

Over the next few days the Returning Officer for each district conducts a scrutiny of the rolls to ensure that there are no irregularities (such as a voter being issued with more than one ballot paper). [181]   The Returning Officer then makes an official count of the votes from the various polling places in the district and counts any special votes remaining uncounted for the district, disallowing in all cases ballot papers that do not carry an official mark or do not clearly indicate the constituency candidate or the party for which the voter desired to vote. [182]  

Scrutineers appointed by candidates or, where a party does not have an electorate candidate, the parties themselves may witness the counting (and any recounting) of the votes. [183]  

Declaration of result and recounts

When the official count is completed the result is reported to the Chief Electoral Officer. [184]   As soon as practicable after receiving this information the Chief Electoral Officer must declare the results of the voting by notice in the New Zealand Gazette. [185]   The results are also released to the media and published on a website.

Any constituency candidate may, within three working days of the public declaration of the result, apply to a District Court judge to conduct a recount of the votes cast for constituency candidates in that district. [186]   If as a result of conducting the recount the judge finds that the original result was incorrect, the judge orders the Chief Electoral Officer to publish an amended declaration of the result. [187]   Similarly, the secretary of any registered party may require that there be a judicial recount of party votes recorded on ballot papers in the electoral district and the judge may also order that the declared result of the party vote be amended. [188]   Alternatively, the secretary of a party can seek from the Chief District Court Judge a national recount of party votes recorded in every electoral district. In this case a deposit of $90,000 (including goods and services tax) must be paid. A national recount is carried out by District Court judges in each electoral district under the Chief District Court Judge’s direction. The deposit can, at the discretion of the Chief District Court Judge, be used to defray the costs of the recount. [189]  

Return of the writ for constituency members

The Chief Electoral Officer, after declaring the result, and if satisfied that no application is to be made for a judicial recount, or, if there is a recount, after it has taken place, endorses on the writ the full name of every constituency candidate declared to be elected and the date of the endorsement, and transmits the writ to the Clerk of the House. The date endorsed on the writ is the date of the return of the writ, which should be (but is not always) within the time originally specified in the writ for its return. [190]   The returned writ is, in effect, a certificate of election proving the right to membership of the House of the person named on it. It has been called the best available evidence that a person is a member of Parliament. [191]   The elected candidate comes into office as a member of Parliament on the day after the date of the return of the writ. [192]  

The House has, on being informed of an error on a returned writ, ordered an official (formerly the Clerk of the Writs) to attend the House in person with the original writ to amend it or correct it. [193]   The Chief Electoral Officer now has power to correct an error in the name of a member as recorded on the writ. [194]   A returned writ may also need to be amended if the result in an electoral district is overturned following an election petition to the High Court.

Party list returns

The results of the party voting on the ballot papers as declared by the Chief Electoral Officer are aggregated into national totals.

Where a party does not receive more than five percent of the total votes cast and no constituency candidate belonging to that party is elected for an electoral district, the votes cast for that party are entirely disregarded. If a constituency candidate belonging to a party that gains fewer than five percent of the party vote is returned for an electoral district, then that candidate’s party also shares in the allocation of party seats, notwithstanding that the party failed to achieve the five percent threshold. The Chief Electoral Officer calculates the number of party list seats in the new Parliament that every party achieving the five percent threshold of votes or electing a constituency member is entitled to. [195]  

The mathematical methodology used to allocate party list seats is known as the Sainte Laguë formula after the political scientist who devised it. The application of this formula results in a near-proportional allocation of seats among the various parties entitled to party list seats. If a party has won more constituency seats than it is entitled to based on its share of the party vote, it keeps the constituency seats it has won and the size of the House is increased to that extent until the next election. This occurrence is referred to as an ‘overhang’. The first overhang occurred at the 2005 general election when a party won four constituency seats but its share of the party vote would have only entitled it to three seats. The party seats to which each party is entitled are allocated by the Chief Electoral Officer to the candidates on each list in the party’s order of preference. The same person may be a candidate in a constituency and also be included on a party list. Indeed this is common. A person who has already been elected for an electoral district is thus disregarded by the Chief Electoral Officer in allocating party list seats and the next candidate on the list is selected. If a party has not nominated enough candidates on its party list to take up all the seats to which it is entitled, those seats are not filled and the size of the House is reduced accordingly.

When the process of allocating party list seats is complete the Chief Electoral Officer declares the candidates to whom party list seats are allocated to have been elected and forwards to the Clerk of the House a return listing their full names. [196]   These members come into office as members of Parliament on the day after this return is made. [197]   The Chief Electoral Officer may correct an error in the name of a member on the list of members elected. [198]  

Storage of ballot papers

Unused ballot papers are destroyed by the Returning Officers.

The ballot papers actually used at an election are packaged and forwarded by each Returning Officer to the Clerk of the House, who must retain the packages unopened for six months before they can be destroyed. (The legislation which requires the preservation of public records does not apply to such papers. [199]   ) A court of competent jurisdiction or the House itself may order any of the packages so delivered to the Clerk to be opened. [200]   A “court of competent jurisdiction” is any court having jurisdiction over any matter in which the question of voting at an election is relevant. [201]   Thus, the High Court on the trial of an electoral petition can order the opening of the packages, and the District Court has done so in the case of a prosecution for double voting.

Constituency seats

Election petitions complaining of the election or return of a member for an electoral district may be brought by defeated candidates or by electors of the district. [203]   They may also be brought by anyone “claiming to have had a right to be elected or returned at the election”, [204]   which appears to mean anyone at all on the electoral roll whether or not they offered themselves as candidates in that electoral district. Legal aid is not available for those involved in bringing an election petition. [205]   An election petition must be presented to the High Court within 28 days of the public notification of the official results. [206]   This requirement for a petition to be filed within a fixed, relatively short period of time of the result being announced is mandatory. In Australia it has been held to be an essential condition or jurisdictional requirement of any challenge to the election result. The time bar is designed to reflect the public interest in resolving expeditiously and with finality questions about disputed elections. [207]  

The trial of an election petition takes place before three judges of the High Court named by the Chief Justice [208]   under rules made for the purpose. [209]   The trial takes place in open court and the court has jurisdiction to inquire into and adjudicate on any matter relating to the petition that it sees fit. It may direct a recount or scrutiny of some or all of the votes given at the election and, where another candidate claims to have been elected, may receive evidence rebutting that candidate’s claim as if an election petition had been presented against that person’s election. [210]  

The decision of the High Court as to who was duly elected or whether the election was void is final and conclusive without any right of appeal. [211]   The High Court (by majority if need be) certifies to the Speaker its determination as to whether the member whose election is in issue was duly elected, whether one of the other candidates was duly elected or whether the election in that district was void. [212]   The court must also report on any allegations of corrupt or illegal practices that have been made in the petition and may also make a special report to the Speaker on any matters arising in the course of the trial that it considers should be submitted to the House. [213]  

The Speaker presents the certificate and any accompanying report to the House. The House then orders them to be entered in its journals and gives any necessary directions for confirming or altering the return or for otherwise carrying out the determination. [214]   If the original writ is required to be amended because the court certifies that a candidate other than the one originally returned was properly elected, the House may order the Chief Electoral Officer to attend with the writ and to amend it accordingly. [215]   Where the court confirms the validity of the election of a sitting member, the court’s certificate is merely entered in the journals without any other direction from the House. [216]   No notice is required of a motion to enter the court’s certificate in the journals. [217]  

Party list seats

An electoral petition seeking a review of the procedures and methods used to allocate seats to political parties may be presented by the secretary of a party listed on the ballot paper. Such a petition must be presented to the Court of Appeal within 28 days of the declaration of the election of party list members. [218]   The Court of Appeal then tries the petition. Any trial of an election petition relating to party list seats is concerned only with how the seats were allocated. No challenge to the fact that the vote of an elector was allowed or disallowed is permitted, nor may any allegation that corrupt or illegal practices have been engaged in at the election be made. [219]  

The Court of Appeal determines whether the procedures used to allocate seats were correctly applied and consequently whether a valid return of members for party list seats has been made. [220]   The court may make orders invalidating any candidate’s return, declaring another candidate to have been elected or requiring the Chief Electoral Officer to repeat the allocation procedures for party list seats. [221]  

Determining that a vacancy exists

The responsibility for setting in train the machinery for filling a vacancy in the membership of the House rests with the Speaker. The Speaker is enjoined to act, without delay, to fill a vacancy (whether the vacancy is for an electoral district or arising from a party list) when satisfied that a seat has become vacant. [261]   In most cases the Speaker makes the judgment that a vacancy exists unprompted on receiving the relevant information or formal advice. However, both the House and the courts may have a role in establishing or helping to establish for the Speaker that a vacancy in fact exists.

As far as the House is concerned the Speaker has indicated that before taking the drastic step of declaring the seat of a sitting member to be vacant, the Speaker will give the member concerned leeway to argue to the contrary. [262]   In a doubtful case this may involve the Speaker referring the matter to the Privileges Committee for consideration. [263]   The Speaker’s decision on whether a vacancy exists would then be informed by the report of the Privileges Committee and the House’s consideration of that report. The Speaker has delayed taking a decision in such circumstances to permit the committee to report and the House to debate the report. [264]   Ultimately, however, the statutory duty of determining whether a vacancy exists is the Speaker’s, not the House’s. [265]  

It is conceivable that, in an appropriate case, a court of competent jurisdiction could declare that a member’s seat had become vacant. This will arise most obviously in regard to electoral petitions where the High Court (for constituency members) and the Court of Appeal (for party list members) may declare a member’s election void, thus establishing a vacancy. Indeed where the attack is on the validity of the member’s election in the first place, this is the only means of establishing that there is a vacancy. A court has also considered the question of a vacancy arising subsequent to a member’s election on specific statutory referral by Parliament. Thus the Court of Appeal was asked to certify if a particular member’s seat had become vacant for bankruptcy. [266]   But it is also conceivable that the question of whether a member was disqualified could arise for resolution incidentally by a court (for example, on a prosecution for sitting as a member after becoming a public servant, if there was a dispute as to whether the member had in fact become a public servant) or directly if a declaration as to the member’s status was sought, [267]   though the court might consider in the latter case that this was a matter for the Speaker or the House to determine, at least initially, rather than the court to rule on.

The House itself claims the power of determining the qualifications of its members to sit and vote in the House and a question relating to this may be considered by the House as a question of privilege. (See Chapter 46.) The House’s determination of the right of a person to sit and vote in the House may lead the Speaker to initiate the provisions for the filling of a vacancy or confirm that there is no vacancy to fill. [268]   No question as to the validity of the House’s procedures arises from the fact that a member continues to sit and participate in its proceedings after incurring a disqualification. [269]  

Electoral district vacancies

In the case of a vacancy arising among the members representing electoral districts, the vacancy is filled by a by-election.

The Speaker must publish a notice of the vacancy in the New Zealand Gazette. [270]   The Speaker also advises the House of the vacancy, though if the House is not sitting at the time the vacancy arises, such advice may not be communicated until after the publication of the notice or, indeed, until after the vacancy has been filled. The Governor-General is obliged within 21 days of the publication of a vacancy notice to issue a writ to the Chief Electoral Officer directing that official to make all necessary arrangements for the conduct of a by-election to fill the vacancy. [271]   This direction appoints a date (which must be a Saturday) for polling. [272]   The Governor-General may by Order in Council postpone the issue of a writ for a by-election for up to 42 days after the publication of the vacancy. [273]   A by-election has also been postponed for a few weeks by specific legislation. [274]   The rules for conducting a by-election and returning the writ are similar to those for conducting a general election. The main difference is that there is no party vote.

Party list vacancies

In the case of a vacancy arising among members elected from a party list, the vacancy is filled from the party list.

The Speaker publishes a notice of the vacancy in the New Zealand Gazette. [275]   The Speaker also advises the House of the vacancy, as for a vacancy among constituency members. As soon as practicable after the publication of the notice the Governor-General must direct the Chief Electoral Officer to proceed to fill the vacancy. [276]   The Chief Electoral Officer then asks the secretary of the party concerned if the next-ranked unelected candidate on the list of the party to which the member vacating the seat belonged (whether or not the vacating member still belonged to that party when the vacancy occurred) remains a member of the party. If he or she does, the Chief Electoral Officer then inquires of that person if he or she is still willing to be a member of Parliament. If that person is no longer willing to be a member or is no longer alive, then the next candidate on the list is approached and so on, until a candidate from that party’s list is found who is still a member of the party and is willing to take up the vacant seat. If there is no such candidate willing to do so, the seat remains vacant until the next general election. [277]   The Chief Electoral Officer declares the new member elected by publishing a notice in the New Zealand Gazette and files a return with the Clerk of the House or indicates that the vacancy cannot be filled, as the case may be. [278]  

Vacancies not filled in certain circumstances

Where a vacancy occurs in the period between a dissolution of Parliament and the close of polling day, it is not filled. [279]  

The House also has power to dispense with the holding of a by-election or the filling of a party list vacancy in two circumstances. These are if Parliament is due to expire within six months of the vacancy arising or if the Prime Minister informs the House in writing that a general election is to be held within six months of the occurrence of the vacancy. In either of these cases the House can, by a resolution passed by a majority of 75 percent of all members, direct that no steps be taken to fill the vacancy. [280]  

It may be that where the procedure for filling a vacancy caused by the conviction of a member for a crime or corrupt practice has been put in train it could be cancelled by order of a court where that conviction is overturned on appeal. [281]   (See pp. 29–30.) Otherwise, the standard procedures for filling a vacancy in the membership of the House can be set aside only by special legislation. This occurred in 1943 and 1987 when all by-elections were dispensed with for the remainder of those Parliaments. [282]