Legal Beagle by Graeme Edgeler

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Legal Beagle: Fact check: Q+A on mayoral resignations

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  • Greg111, in reply to Myles Thomas,

    A lot of speculation in your comments, for example,"...a drunken rant the night before".

    New Zealand • Since Oct 2013 • 7 posts Report Reply

  • Greg111, in reply to izogi,

    Complicated but mostly true

    New Zealand • Since Oct 2013 • 7 posts Report Reply

  • Chris Waugh, in reply to Greg111,

    “The Local Electoral Act simply does not allow it. I suppose it could.” This is a contradiction in terms Graeme.

    Nonsense.

    "Does not allow" - perfectly normal verb in the active voice describing the situation as it stands.

    "Could" - another perfectly normal verb, though in this case in the conditional, describing a situation which does not actually exist, but which could hypothetically be true under certain circumstances.

    In other words, no contradiction, in terms or otherwise.

    Wellington • Since Jan 2007 • 2401 posts Report Reply

  • Tim Michie,

    Is this particular to Auckland as it has its own act?

    My understanding was that elsewhere the council would nominate a replacement in cases of resignation but freely admit my reading of the LGA was far from thorough.

    Auckward • Since Nov 2006 • 614 posts Report Reply

  • Raymond A Francis, in reply to Ross Mason,

    There has been a meme from the Left that the reason that Palino would have held off releasing this bad news till after the election was for just this reason

    Despite it not being the case and against common sense, better to win than creeping in the back door

    But that hasn't stopped the meme probably because it sounds like a good conspiracy and everybody loves those

    45' South • Since Nov 2006 • 578 posts Report Reply

  • Graeme Edgeler, in reply to Tim Michie,

    Is this particular to Auckland as it has its own act?

    No. The same rules apply for every council. However, if the resignation happens when there are less than 12 months to the next council election, the council does nominate a replacement instead of holding a by-election. If you know of this happening somewhere else, it was presumably in these circumstances.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Tim Michie, in reply to Graeme Edgeler,

    Many thanks Graeme.

    Auckward • Since Nov 2006 • 614 posts Report Reply

  • Glenn Pearce, in reply to Graeme Edgeler,

    In the case of Mayor, the position cannot remain unfilled so the council must nominate a replacement from it's ranks until such time as the by-election can be arranged.

    Auckland • Since Feb 2007 • 504 posts Report Reply

  • Bart Janssen, in reply to izogi,

    If it were an STV election, like in Wellington for instance, are there additional reasons why it would be stupid?

    Yes STV would give you the second most popular choice. But that would not necessarily reflect the desires of the majority at all.

    If for example you had a mayor, representing one political team or platform, who won and achieved say 95% support from the population and then had some reason to resign a month later, or die, or whatever.

    Then simply selecting the next STV candidate would likely result in a new mayor that represents an opposing political platform or team and contrary to the wishes of the vast majority of the population.

    That would be silly.

    Auckland • Since Nov 2006 • 4460 posts Report Reply

  • Steve Todd,

    From my reading of the Local Electoral Act 2001 (as at 1 July 2013), it seems clear that, should Len Brown resign anytime soon, a by-election would indeed be necessary. However, the situation could well have played out quite differently, were it not for the Local Electoral Amendment Act 2013. (Before continuing, I point out I am in no way legally trained, and I most certainly am not a lawyer.)

    Up to and including the 2010 elections, a mayoral candidate could retire (for any reason) at any time after the close of nominations and before polling day (section 69(a)). If the election was by FPP, any votes cast for the retired candidate would be void (section 71(5)). If conducted by STV, the retired candidate would be regarded as withdrawn and any votes given for that candidate would be transferred to the next preference expressed on each vote (section 71(6) of the Act, and clauses 9 and 36 (via clause 22) of Schedule 1A of the Local Electoral Regulations 2001).

    The latter situation actually occurred in Wellington’s first STV mayoral election in 2004. A candidate by the name of Bryon Burke retired from the election soon after the commencement of the polling period (I can’t remember why, if I ever knew), and the 486 votes given for him during the initial burst of voting, were simply transferred to the remaining candidates (404), or became non-transferable (82). (His votes were incorrectly treated as if he was excluded from the count at the first iteration.)

    Had this still been the situation at the 2013 elections, Len Brown’s opponents could well have approached him at the commencement of the polling period with their evidence, and who knows, Mr Brown might well have decided to go quietly, perhaps giving heart problems as the reason. On the other hand, he might have decided to tough it out, with the evidence being released very soon thereafter.

    Either way, a different media frenzy would no doubt have ensued, leading who knows where, but which might well have resulted in a second retirement from the election (resulting, perhaps, in either Penny Bright or John Minto just edging out the other, and Stephen Berry, to take the prize).

    Fortunately, all this was avoided. Section 69 was amended to provide only for applications for the cancellation of the nominations of candidates if they become incapacitated after the close of nominations but before the close of voting. Such applications must be made by the 2 electors who nominated the candidate, in any particular case, and must be witnessed by a Justice of the Peace, and must be accompanied by a certificate signed by a medical practitioner that certifies as to the candidate’s condition and that, in the practitioner’s opinion, the candidate is incapacitated.

    New section 69A sets out what electoral officers must do upon receiving an application under section 69 (as amended). Basically, they have to satisfy themselves that the application is genuine, but, if they cannot make a determination, before the close of voting, that the candidate the subject of the application had become incapacitated after the close of nominations, the application is to be treated as having been declined.

    If, however, electoral officers *do* satisfy themselves that the application is genuine, they must cancel the candidate’s nomination. That being the case, the consequentially-amended section 71(5) or (6), kicks in, and the candidate’s votes are either void, or transferred, as appropriate.

    In the case in question, The Opponents of Len Brown might indeed have decided that getting him to organise the cancellation of his nomination, possibly requiring the necessary other parties to act unlawfully, was never going to happen, or might not happen in time, hence their decision (if they ever made such a decision) to wait until after polling day to release The Evidence, in the hope the pressure would force a resignation.

    Whatever the reason or reasons for what happened, let’s all be grateful section 69 of the Act was tightened up in the manner described. (I suppose it all means, too, that mayoral candidates who now still want out before polling day, for any reason not involving incapacity, would just have to stop campaigning and ask people to vote for someone else – it appears such situations are no longer specifically covered in the Act.)

    Wellington • Since Jul 2013 • 125 posts Report Reply

  • FletcherB,

    I am not a lawyer, and I've only read the bits (of the act(s)) you've posted... but heres a way you could read it to fit Boag (and Polino's?) reading...

    Your term of mayoral-ship is from signing in to signing in... Which is a week or two after most elections.

    An election decides who get in at the next signing in... but an election is NOT the end of your term as mayor... signing in the next one (possibly the same person) is the end of the term. After an election, but before official results confirmation... who gets signed in for the next term is not yet decided/known...

    So if any mayoral (or other elected) candidate withdraws after the election but before the official results/signing in... thats EXACTLY the same as as if they withdrew any-time in the previous 12-months... There's an election soon and we'll muddle by with an appointed replacement until the results of the "next" election are known... oh-my-goodness, the "next election" has already been held?



    And now I've seen Steve Todd's far more thorough post than my own suggesting that any earlier than a 2010 amendment this is almost exactly how it could have played out?

    West Auckland • Since Nov 2006 • 893 posts Report Reply

  • Andrew Geddis, in reply to FletcherB,

    So if any mayoral (or other elected) candidate withdraws after the election but before the official results/signing in… thats EXACTLY the same as as if they withdrew any-time in the previous 12-months

    I don’t think this is right. It assumes a mayoral (or other elected) candidate can “withdraw” after the election but before being confirmed in the position that they have won. Where in the Local Electoral Act does it say that this can happen? Because s.87 only talks about a candidate who “dies or becomes incapable under any Act of holding the office for which the candidate was nominated” – and in those cases, it requires a new election to be held (not the runner-up to be appointed).

    Point being – if Brown had resigned as mayor the day the story broke, he would have become mayor again upon the day after the announcement of the official results of the 2013 election (see s.115(1)) … and have to resign again (or not, as the case may have been).

    Dunedin • Since Nov 2007 • 206 posts Report Reply

  • Andrew Geddis, in reply to Steve Todd,

    (I suppose it all means, too, that mayoral candidates who now still want out before polling day, for any reason not involving incapacity, would just have to stop campaigning and ask people to vote for someone else – it appears such situations are no longer specifically covered in the Act.)

    Right - as happened in Hamilton this time around: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11139352

    Dunedin • Since Nov 2007 • 206 posts Report Reply

  • Matthew Hooton,

    Thanks for the post Graeme and for your quick briefing before Nine to Noon on Monday. However, the law may not be relevant in explaining people's behaviour. It is what people thought the law is. And I suspect that there were those involved in all this who believed the law is as Michelle Boag (mis)explained it, which is why they did what they did.

    Auckland • Since Aug 2007 • 195 posts Report Reply

  • Alison Poole, in reply to Matthew Hooton,

    Do all these right-wing identities have a similarly slack attitude to legal compliance for their business interests?

    It's hardly difficult to find out the law, you don't need a QC, just go to Google, type in "Local Government Act", pull the page up and search for "election":

    Extraordinary vacancy in local authority or community board

    (1) If a vacancy occurs in the office of a member of a local authority or in the office of an elected member of a community board more than 12 months before the next triennial general election, the vacancy must be filled by an election under this Act.

    Christchurch • Since Oct 2013 • 2 posts Report Reply

  • Lilith __, in reply to Matthew Hooton,

    the law may not be relevant in explaining people’s behaviour. It is what people thought the law is. And I suspect that there were those involved in all this who believed the law is as Michelle Boag (mis)explained it, which is why they did what they did.

    It's a pity Boag et al didn't do research or get advice before speaking on the subject.

    Dunedin • Since Jul 2010 • 3894 posts Report Reply

  • Andrew Geddis, in reply to Alison Poole,

    It’s hardly difficult to find out the law, you don’t need a QC, just go to Google, type in “Local Government Act”, pull the page up and search for “election”:

    Maybe this was the problem - they did this google search and couldn't find anything. It's the "Local Electoral Act" that governs the matter (:->)

    Dunedin • Since Nov 2007 • 206 posts Report Reply

  • Steve Todd, in reply to Andrew Geddis,

    Thanks for that, Andrew.

    I see that Dave Macpherson’s 2953 votes were not regarded as void (confirming that there is no longer any provision to void FPP votes given for candidates who retire from the election after the close of nominations but before the close of voting).

    I note, too, that candidates who retire from an election by STV are no longer regarded as having withdrawn (see clause 22 (as amended) of Schedule 1A of the Regulations), which means they are excluded from the count (if and when that becomes necessary), and their (reduced number of) votes transferred in the normal manner (as Bryon Burke’s votes *incorrectly* were in the 2004 Wellington mayoral election).

    Wellington • Since Jul 2013 • 125 posts Report Reply

  • Sacha, in reply to Lilith __,

    It's a pity Boag et al didn't do research or get advice before speaking on the subject.

    That would contravene their idiotology.

    Ak • Since May 2008 • 19740 posts Report Reply

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