Legal Beagle by Graeme Edgeler


What next for Winston?

The preliminary results of the Northland by-election were released last night. A few overseas votes will be winging their way back to New Zealand, and checks will be made over the eligibility of those who cast special votes, but Winston Peters has a lead of over 4000 votes, so the official vote isn’t going to change the outcome.

This means the National Party is down one on their election result: an electorate MP has resigned, and been replaced by someone from another party. Just like when this happened in the Te Tai Tokerau by-election, and the Te Tai Hauauru by-election, there’s no way for the party that previously held the seat to get a replacement except by winning.

There has been some dispute about what the law provides in these circumstances. I am entirely confident. I believe the Electoral Commission is confident also.

Winston Peters is currently an MP, a member of Parliament because his name was sufficiently high on New Zealand First list that he got elected with the help of New Zealand First’s 208,300 voters.

Like all MPs, Peters can resign. If he resigns, then section 55 of the Electoral Act says there is ‘vacancy’. If that vacancy arises before the writ is returned then that vacancy will have been caused by the vacating of a “seat of a member elected as a consequence of inclusion of the member’s name on a list”. I do not think it can be suggested that if Peters writes a letter of resignation to the Speaker, the Speaker can do anything other than accept it, and declare a seat vacant, as has happened every other time a list MP has resigned. The Governor-General will then order the Electoral Commission to undertake the process to replace him with someone else on New Zealand First’s list.

We shouldn’t assume that Ria Bond (or anyone else from the New Zealand First list) will become an MP next week. Winston Peters probably wants to be in the House next week, and the official count isn’t due for another 10 days. After that, there’s 3 working day period in which a judicial recount can be requested, and assuming that doesn’t happen, the ‘return of the writ’, officially declaring Winston Peters to be the member of Parliament for Northland, will happen on Tuesday 14 April.

Before then, we all assume Winston Peters will resign. But Peters is not required to resign, and has said he may not. The Electoral Act does not automatically declare a vacancy if a person who is already an MP wins a by-election. He can, if he wants, simply leave Parliament one MP down on its election result total. Philip Lyth has an interesting post here asking whether it is possible that if Winston declined to resign, could the Speaker, with or without assistance from the Privileges Committee, force a vacancy in his list seat? Philip asks:

But what if the Speaker considers that a list vacancy has arisen?  This is an area where the law is unclear.

I disagree, While I still consider the result would be the same, I would have agreed with Philip (and David McGee, writing in 2005) that there was room for debate, but for one matter: late last year, Parliament enacted the Parliamentary Privileges Act. Section 23 of that act makes clear that the Electoral Act is the only mechanism by which an MPs seat can become vacant:

23 Members' seats become vacant only as provided in Electoral Act 1993

(1) The House has no power to make a member's seat become vacant by expelling the member (whether to discipline or punish the member, to protect the House by removing an unfit member, or for any reason or purpose) from membership of the House.

(2) Subsection (1) overrides any law to the contrary.

A list MP winning a by-election is something we’ve discussed before, but it’s never actually happened so it will be interesting to see how it plays out. However, if Winston does resign, then the identity of the person who will replace him is, at least officially, out of his hands. The law requires the Electoral Commission to ask the Party Secretary if the next person on the list remains a paid up party member, and if so, requires them to ask that that person whether they agree to become an MP (if not, the same process is followed with the person next on the list). The New Zealand First board doesn’t officially have a say, but there is nothing to stop it asking a particular potential replacement to say no to the Electoral Commission. This has happened before: it took some cajoling, but ultimately both Mike Ward, and Catherine Delahunty agreed to step aside to allow Russel Norman to become a list MP with the resignation of Nándor Tánczos.

I agree with Philip that some clarity in the law would be nice. In light of the Parliamentary Privilege Act, I don't think there is debate about Peters' options now, but if Peters were to decline to resign, I'm not certain what would happen if he was, for example, hit by a bus later in the year: would any future vacancy after Winston is formally elected as MP for Northland result only in a by-election in Northland, or both a by-election, and a list replacement?

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