Opinion

Date: 7 August 2001

From: LEGAL SERVICES MANAGER

To: ELECTORAL OFFICER

LOCAL ELECTORAL ACT 2001
DESIGNATION OF INDEPENDENT CANDIDATES

I refer to your email of 2 July 2001 in which you have sought my advice regarding an interpretation of section 55(4) of the Local Electoral Act 2001 relating to the use of "labels" by candidates at the forthcoming local body elections.

The background to this matter is that until 1 July this year local body elections were regulated by the Local Elections & Polls Act 1976.

Section 26(1) of that Act provided:

"(1) Where the party accreditation or other designation of any candidate is shown on the nomination paper, the Returning Officer may, if he considers it necessary, require the candidate to produce evidence sufficient to satisfy the Returning Officer of the candidate’s eligibility to claim that accreditation or designation."

Consequently it has been the practice throughout New Zealand for many years for candidates on their nomination papers, and subsequently on the voting papers, to identify themselves by a variety of designations.

A number of candidates will belong to well known political groupings and will be identified as such. However, many other candidates will choose their own "label" for the purpose of a particular election and where there is no group as such. Examples of such labels which were used in the 1998 Christchurch election are "Independent City-Wide – City Pride Party", "Pick the Berry Team", "Save Assets Spend Wisely", "The Black Lodge", "Economic Euthenics", "Making It Happen For You", "Participation and Progress". Typically, many such labels will be seen amongst the candidates for the mayoralty.

There has never been, to the writer’s knowledge, any issue regarding the use of such labels, nor any confusion in the minds of the public as to the use of such labels. From a legal perspective they were seen as falling within the words "or other designation" in section 26(1).

When the Local Electoral Bill was introduced into the House, clause 53 generally replaced section 26 and in particular clause 53(3) provided:

"A nomination under subsection (1) must state the name under which the candidate is seeking election and any organisation or group with which the candidate claims for the purposes of the election, to be affiliated."

I record that this Council in its submission to the Select Committee on the Bill made a submission regarding clause 53(3) and recommended that the words "or other designation" be included in the subclause so as to ensure that the historical practice referred to in paragraph 2 above of labels being used for local body elections could continue without difficulty. In its submission the Council noted that there was an implication that a person could not use a label such as "independent" because clause 53(3) refers only to the name of the person concerned, and "…any organisation or group…" with which that person claims to be affiliated.

Unfortunately the Select Committee, instead of adopting the words "or other designation" put forward by the Council, adopted the words now found in section 55(4) of the 2001 Act which states:

"(4) A nomination under subsection (1) must state—

(a) the name under which the candidate is seeking election:

(b) any organisation or group with which the candidate claims to be affiliated for the purposes of identifying that affiliation in the voting documents at the election:

(c) whether or not a candidate who does not claim any affiliation referred to in paragraph (b) wishes to be identified in the voting documents at the election as an independent candidate."

It will be noted that in subsection (4)(c) the person is to state whether or not they wish to be identified in the voting documents at the election "…as an independent candidate." So it would appear that the Select Committee did not wish to have candidates confined solely to those who were affiliated with organisations or groups, but also wish to recognise that many candidates did not have any such affiliation.

In its report back to Parliament the Justice & Electoral Committee did not make any specific reference to this inclusion of the reference to "independent candidates".

The question you have asked is whether, given the new section 55(4), can the historical practice of candidates using different labels as I have referred to in paragraph 2 above, continue.

In my opinion the practice can continue. I do not believe that the words "independent candidate" should be read so as to literally mean that all persons who are not affiliated to a group or organisation, must identify themselves as "independent" and cannot use any other label for the purpose of the election. In my view the phrase "independent candidate" in section 55(4) is used to contrast a person who does not belong to an organisation or group, with a person who does belong to an organisation or group.

Support for that proposition can be seen in section 61(2)(c) of the Local Electoral Act which provides that a candidate profile statement must be confined to information concerning the candidate including the group or organisation for which the candidate claims to be affiliated "…or his or her status as an independent candidate…". In other words, it is an issue of status rather than the specific label which is important for the purposes of section 55(4). Similar wording referring to the status of the candidate as an independent candidate is also used in section 75(2) of the Local Electoral Act when referring to the information that the voting documents must contain.

Given the widespread use of the practice of candidates creating labels for themselves for local body elections, I believe that any other interpretation would be impracticable and cause considerable consternation, particularly at this time when candidates are completing nomination papers and where there has been no knowledge given to them of a change in a very long-standing practice for local body elections.

In this regard I would refer to the Court of Appeal decision in Frucor Beverages Limited v Rio Beverages Limited (2001) 2NZLR 604, where at page 612 the majority of the Court stated:

"Allied to this tenet is the principle that the Courts will endeavour to avoid an interpretation of a section where that interpretation would lead to unworkable or inconvenient consequences."

At page 614 of the same judgment the majority stated:

"…It is recognised, that, despite judicial dicta to the contrary, the finding of a proper implication within the express words of an enactment is a legitimate and, indeed, a necessary function of the interpreter. The question of whether an implication should be found depends on whether it is proper or legitimate to do so having regard to the accepted guides to legislative intention. Where the point is doubtful it will, as always in interpretation, call for a weighing or balancing of the relevant factors."

The Court also referred to its previous decision in Northland Milk Vendors Association Inc v Northern Milk Limited (1988) 1NZLR 530 where it held that the Court will imply words where it is necessary to "fill a gap" in the legislation.

The Courts have also held before that one must make an Act work as Parliament intended and must give an interpretation which accords best with the parliamentary intention or the spirit of the Act.

To my knowledge there are no public policy reasons here whereby Parliament would have clearly decided not to allow for the continuation of the practice of persons using labels for local body elections. In my opinion the cause here is a drafting error in the sense that the Select Committee understood the problem but the solution it arrived at was somewhat too narrow than the former wording of "other designation" so as to put the matter beyond doubt.

Given the fact that the Select Committee did not also make any comment on this particular matter, I am of the view that it is acceptable for you to accept nomination papers, and for you to include on voting papers, the labels that individual candidates will give you, subject to the normal processes that are set out in the Act for you to ensure that those labels are appropriate.

Peter Mitchell

PWM:GAM