Legal Beagle by Graeme Edgeler


If we only had time

A couple of days ago, the organisers of a petition to Parliament seeking a referendum on the question:

Should a smack as part of good parental correction be a criminal offence in New Zealand?

placed that petition before the Clerk of the House of Representatives. If the petitioners are successful, it seems sensible (and fiscally prudent – it'll save around $10 million) to hold that referendum at the same time as the general election. But it has been suggested that there is insufficient time to organise the referendum to be held concurrently with the election, so I thought I'd work my way through the various laws in play to test this hypothesis.

The petition was presented to the Clerk on June 23. The Clerk has two months to determine whether the petition has enough valid signatures. Then the Clerk must advise the Speaker whether she is required to present the petition to the House – on or before August 22. Assuming that there are enough signatures, the Speaker must “forthwith” inform the House that an the petition has been successful. This would occur on August 26, the next sitting day. Even if the Clerk finishes a couple of weeks early (any time after August 7), the House would not be informed until August 26, because the House is in recess during the interceding weeks.

After the petition had been presented to the House, the Governor-General, by order-in-council, must specify the date on which the referendum is to be held. The decision must be made within one month of the presentation in the House, and the date specified must be no later than 12 months after that date.

Cabinet (which instructs the Governor-General what to do) meets on Mondays. On Monday 1 September it will be able to decide when to hold the referendum. Cabinet could, of course, delay making the determination if it really wanted to – with September 22 the date of its last meeting of cabinet before the deadline, but the order-in-council could be made any day until September 25.

If cabinet is to set the date, then an actual date must be specified. Cabinet cannot order that the referendum be held on an as-yet-unknown election day. It could determine the date of the election, and set both for the same day, or Parliament could make the decision. Because an election must be held within the next 12 months, Parliament can pass a resolution requiring the referendum to be held at the same time as the unscheduled election; indeed, Parliament could do this before Cabinet meets – it could even do it (with leave in order to leapfrog other stuff on the order paper) on the day the Speaker presents the petition.

The question then arises as to when the decision about the election must be made.

The last possible date for the election is November 15. The election will be held on the date the Governor-General determines in a writ he issues ordering the Chief Electoral Officer to conduct an election. A maximum of 50 days may pass between the issuing of the writ and the announcement of the result. Between the dissolution of Parliament and the issuing of the writ there is a maximum of 7 days, and between nomination day (around a week after the writ) and polling day there will be at least 20 days, but no more than 27 days – thus an election can effectively be called with 4-5 weeks notice.

At the cabinet meeting on 1 September, the election could be ordered for any Saturday in October or November. Even if it chooses to delay its decision by a week or two (as it is entitled), it would still have enough time to order both the referendum and election for mid-late October or November. Only if an election in September (or earlier) was wanted would there be insufficient time to order the referendum be held.

One thing that would prevent the election being held on the same day as the referendum is if the writ ordering the election to be held has already been issued. A decision by the Government to have an early election would prevent the writs (one ordering the election, and one ordering the referendum) being issued at the same time (which is required if the the votes are to happen at the same time), and would prevent Parliament from ordering them to be concurrent (because Parliament would have been dissolved).

There is nothing – except perhaps fiscal prudence – to require the election and any referendum be held at the same time, but any choice that they not be – either by electing the go early, or by delaying the vote until next year – is voluntary on the part of the Government. The government will not be prevented by any circumstance beyond its control from holding the referendum at the same time as the election. The 20-27 days between the close of nominations and voting is long enough for the Chief Electoral Officer to determine the form of 70 different ballot papers and have them printed in sufficient quantities to conduct elections. Adding another question, or another piece of paper that is the same across the whole country (the format of which is already known) is not an Herculean task beyond his capacities.

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