Head of State Referenda Bill - Explanatory note and Part 1

Keith Locke MP

Subjects: Electoral Reform, Parliament and Politics

Go to Parts Two to Six of the Head of State Referenda Bill

Go to The Schedules
[Note: This bill is in the Parliamentary ballot from which Private Member's Bills are occasionally drawn. It is not currently before Parliament]

This bill provides for the holding of 2 referenda on proposals to reconsider the matter of New Zealand's head of State.

The first referendum is taken on proposals to determine the matter of New Zealand's head of State. If one of the three proposals receives a majority vote, that proposal will be implemented. If a majority of votes in this referendum are for the proposal to retain the present head of State, there will be no further referendum. If not, the two options receiving the highest number of votes will be subject to a final, binding referendum.

Keith Locke

Head of State Referenda Bill

Member's Bill

The Parliament of New Zealand enacts as follows:

Title
This Act is the Head of State Referenda Act 2001.
Commencement
1. Except as provided in subsections (2) to (4), this Act comes into force on the day after the date on which it receives the Royal assent.
2. Part 2 comes into force on the day on which the Returning Officer makes, in accordance with section 21(3) , a declaration that a proposal favouring reconsideration of the head of State is carried, following a referendum carried out under Part 1.
3. Subject to section 21(3), Part 3 and Schedule 1 come into force on the day on which the Clerk of the House of Representatives makes, in accordance with section 38, a declaration that a proposal favouring a head of State appointed by the House of Representatives is carried, following a referendum carried out under Part 2.
4. Part 4, and Schedules 1, 5, 6, 7, 8 and 9 of this Act come into force on the day on which the Returning Officer makes, in accordance with section 49 of the Referenda (Postal Voting) Act 2000, a declaration that the proposal favouring election of the head of State is carried, following a referendum carried out under Part 2.
Purpose
The purpose of this Act is to -
1. provide for the holding, in conjunction with the general election, of a referendum on whether to continue with the Sovereign as New Zealand's head of State or whether to change to either a head of State appointed by a vote of at least 75% of the House of Representatives, or a head of State directly elected by the people; and
2. subject to paragraph (a), provide for the holding of a further referendum on the two options that gain the most votes in the first referendum.
Interpretation
In this Act, unless the context otherwise requires, —
candidate means any person who has been nominated as a candidate for the election of head of state
election means an election of a candidate for head of State
elector means a person registered as an elector of an electoral district
electoral district or electorate means a General electoral district or a Maori electoral district constituted under sections 35 and 269 of the Electoral Act 1993
general election means an election that takes place after the dissolution or expiration of Parliament
Meek's method of counting votes is the method of counting votes described in Schedule 6
polling day, in relation to any election, means the day appointed in the writ for that election for the polling to take place if a poll is required
Sovereign means —
1. the Sovereign in right of New Zealand:
2. the Governor-General appointed by the Sovereign as the Sovereign's representative in New Zealand
Act to bind the Crown
This Act binds the Crown.

Part 1
Referendum on whether to reconsider the nature of head of State

First referendum
Referendum on the nature of head of State
1. On the polling day appointed for the general election immediately following the commencement of this Act, a referendum of the electors of each district must be taken on proposals to either continue with the Sovereign as head of State, or to change to either a head of State appointed by a vote of at least 75% of the House of Representatives, or a head of State directly elected by the people.
2. For the purposes of this Act, the referendum required by subsection (1) is referred to as the first referendum.
3. The proposals concerning New Zealand's head of State that are the subject of the first referendum are to be submitted in the voting paper in Schedule 2.
General provisions
Application of Electoral Act 1993
1. Subject to the provisions of this Act and of any regulations made under this Act, the provisions of the Electoral Act 1993 and of any regulations made under that Act, as far as they are applicable and with any necessary modifications, apply as if the first referendum conducted under section 6 were an electoral poll.
2. The provisions of the Electoral Act 1993 and of any regulations made under that Act, unless the context otherwise requires, apply for the purposes of the first referendum as if all references to the ballot paper were references to the voting paper.
3. No writ is issued under the Electoral Act 1993 for the conduct of the first referendum.
Provisions subject to which first referendum to be taken

For the purposes of conducting the first referendum, -
1. the Returning Officer of the electoral district must be the Returning Officer, and the Deputy Returning Officers appointed by the Returning Officer for the taking of the electoral poll must be the Deputy Returning Officers, for the taking of the first referendum:
2. the polling place officials, interpreters, and ushers appointed for the taking of the electoral poll must, by virtue of being so appointed, be, in addition, polling place officials, interpreters and ushers for the taking of the first referendum:
3. the polling places in each electoral district for the taking of the electoral poll must be the same as those used for the taking of the first referendum.
Scrutineers
Nomination of scrutineers by electors in favour of proposal
1. any 10 or more electors who are in favour of any of the proposals, -
  for the purposes of the first referendum, described under the heading "Head of State reconsideration" in Schedule 2, -
  may by nomination paper under their hands nominate any 2 specified persons to appoint 1 scrutineer to act at each polling place in the district in the interests of all electors who are in favour of that proposal.
2. The nomination paper must be in form 1 in Schedule 3.
Nomination paper to be lodged with Returning Officer
The nomination paper must be lodged with the Returning Officer of the electoral district not later than the twelfth day before the date fixed for the holding of the first referendum or before polling day, and must be open to public inspection.
Returning Officer to select fit persons to appoint scrutineers
1. On a day to be publicly notified by the Returning Officer for the electoral district, but not earlier than the tenth day nor later than the fifth day before the day set for the holding of the first referendum or before polling day, the Returning Officer must publicly consider all the nomination papers lodged.
2. The Returning Officer must, after hearing all objections, select 2 fit persons to appoint one scrutineer to act at each polling booth in the interests of all electors, and the persons so selected may appoint accordingly.
Selection to be in writing
The selection of scrutineers under section 11(2) must be signed by the Returning Officer and must be in form 2 in Schedule 3.
Appointments of scrutineer to be in writing
The appointment of scrutineers under section 11(2) must be in each case be signed by the persons selected, and must be in form 3 in Schedule 3.
Powers and rights of scrutineers
1. Every scrutineer who is appointed has, for the purposes of the first referendum, all the powers and rights of a scrutineer under the Electoral Act 1993, and must make a declaration in form 1 in the Second Schedule of the Electoral Act 1993 (which form must be used with all necessary modifications).
2. Without limiting subsection (1), a scrutineer -
  1. may be present at the office of the Registrar of Electors when the Registrar of Electors is performing his or her duties under section 172 of the Electoral Act 1993 (as applied by this Act) in relation to declarations in respect of special votes, but not more than one such scrutineer per proposal may be present at the office of the Registrar of Electors at any time; and
  2. may be present at the scrutiny of the rolls conducted by the Returning Officer under section 175 of the Electoral Act 1993 (as applied by this Act), but only one such scrutineer per proposal, or such greater number as is permitted by the Returning Officer, may be present at the scrutiny of the rolls at any time.
Remuneration of scrutineers
The remuneration (if any) of the scrutineers must not be paid out of money appropriated by Parliament for the purpose of conducting the first referendum.

The ballot
Method of voting
Every voter at the first referendum must vote by marking the voting paper with a tick within the circle immediately after the proposal for which the voter wishes to vote.
Spoilt ballot papers
Section 169 of the Electoral Act 1993 has effect for the purposes of the first referendum as if there were substituted, for the words "not having deposited his or her ballot paper in the ballot box", the words "not having deposited any part of the voter's voting paper in the ballot box".
Counting of votes
1. The Returning Officer must reject as informal -
  1. any voting paper or piece of voting paper that does not bear the official mark if there is reasonable cause to believe that it was not issued to a voter by any Deputy Returning Officer or a poll clerk authorised by a Deputy Returning Officer to issue ordinary voting papers; and
  2. a voting paper or piece of a voting paper that does not clearly indicate the proposal for which the voter desired to vote.
2. No voting paper or piece of a voting paper may be rejected as informal only by reason of some error or omission on the part of an official, if the Returning Officer is satisfied that the voter was qualified to vote at the referendum.
Declaration of result by Returning Officer
Declaration of result of first referendum
1. Where all the voting papers for the first referendum have been dealt with in accordance with section 178 of the Electoral Act 1993 (as applied by this Act), the Returning Officer, having ascertained the total number of votes recorded for each proposal described in the voting paper under the heading "Head of State reconsideration", must declare the result of the referendum in the electoral district by giving public notice of the total number of votes recorded for each proposal.
2. Section 179 of the Electoral Act 1993 does not apply in relation to the first referendum.
Recount
Application to District Court Judge for recount
If any result of the binding referendum is disputed on the ground that the public declaration by the Returning Officer in accordance with section 20(1) was incorrect, the following provisions apply:
1. any 6 electors may, within 3 working days after the public declaration, apply to a District Court Judge for a recount of the votes:
2. every application must be accompanied by a deposit of $200 (which deposit is inclusive of goods and services tax):
3. the District Court Judge must cause a recount of the votes to be commenced within 3 working days of receiving the application, and must give notice in writing to the applicants and to any scrutineers appointed under section 12 of the time and place at which the recount will be made:
4. sections 180, 182, and 184 of the Electoral Act 1993, so far as they are applicable and with the necessary modifications, apply to the recount.
Declaration of result by Chief Electoral Officer
Declaration of result of first referendum
1. After the Returning Officer has made a public declaration in accordance with section 19(1), and after the time for an application for a recount has elapsed, the Returning Officer must send to the Chief Electoral Officer a statement of -
  1. the total number of valid votes cast in respect of the voting paper; and
  2. the number of valid votes recorded for each proposal in the voting paper.
2. On receipt of the statements from all Returning Officers the Chief Electoral Officer must ascertain the total number of valid votes cast for each of the head of State proposals.
3. If a majority of the valid votes cast favour any one of the proposals, that proposal is carried.
4. After ascertaining the results of the referendum in accordance with the provisions of this section, the Chief Electoral Officer must declare, by notice in the Gazette, -
  1. the results of the referendum; and
  2. which proposal is carried.
Petitions
Sections of Electoral Act 1993 applied
Sections 235 to 262 of the Electoral Act 1993, with any necessary modifications, apply to a petition for an inquiry under section 23 of this Act.
Petition for inquiry
1. Where any 50 electors in an electoral district are dissatisfied with the result of the first referendum in their district, they may, within 20 working days after the Returning Officer has made a public declaration in accordance with either section 21(1), file a petition in the High Court for an inquiry as to the conduct of the referendum or of any person connected with it.
2. If the petition complains of the conduct of a Returning Officer or Registrar of Electors, the person complained of must be a respondent to the petition.
3. The petition must allege the specific grounds on which the complaint is founded, and no other grounds than those stated may be investigated, except by leave of the Court and upon reasonable notice being given, which leave may be given upon such terms and conditions as the Court considers just.
4. Evidence may be given that the total number of votes cast for any proposal was higher or lower than that given in the public declaration made under section 20(1).
5. A petition must be in Schedule 4 and must be filed in the registry of the High Court nearest to the place where the referendum was held. The Registrar of the Court must send a copy of the petition to the Returning Officer.
6. The petition must be served as nearly as may be in the manner in which a statement of claim is served, or in such other manner as may be prescribed by rules of Court.
Determination of Court as to result
At the conclusion of the trial of a petition for an inquiry, the Court must determine whether, because of some irregularity that in its opinion materially affected the result of the referendum, the referendum is void, or whether the number of votes declared for the proposal contained in the public declaration made under section 20(1) was wrong.
Fresh referendum
1. Where a referendum is determined by the Court to be void under section 24, the Court must notify the Returning Officer and a fresh referendum must be taken not less than 30 working days after the date of the notification.
2. Any fresh referendum must be taken in the same manner as the previous referendum, using the same roll of electors.
Miscellaneous Petitions
Interfering with or influencing voters
1. Every person commits an offence and is liable on summary conviction to a fine not exceeding $5,000 who, at the first referendum, -
  1. in any way interferes with any elector, either in the polling booth or while the elector is on the way to the polling booth, with the intention of influencing the elector or advising the elector as to the elector's vote:
  2. at any time on the day on which the referendum is held before the close of the poll or in view or hearing of any public place holds or takes part in any demonstration or procession having direct or indirect reference to the referendum, by any means whatsoever:
  3. subject to subsection (2), at any time on the day on which the referendum is held before the close of the poll, makes any statement having direct or indirect reference to the referendum, by means of any loudspeaker or public address apparatus or cinematograph or television apparatus:
  4. at any time before the close of the poll, conducts in relation to the referendum a public opinion poll of persons voting before the day on which the referendum is held:
  5. at any time on the day on which the referendum is held before the close of the poll, conducts a public opinion poll in relation to the referendum:
  6. at any time on the day on which the referendum is held before the close of the poll, or at any time on any of the 3 days immediately preceding that day, prints or distributes or delivers to any person any thing being or purporting to be in imitation of the voting paper to be used at the poll, together with any direction or indication as to the proposal for which the elector should or should not vote, or in any way containing any such direction or indication, or containing any matter likely to influence any vote:
  7. subject to subsection (3), at any time on the day on which the referendum is held before the close of the poll, exhibits in or in view of any public place, or publishes or distributes or broadcasts, -
    1. any statement advising or intended or likely to influence any elector as to the proposal for which the elector should or should not vote; or
    2. any statement advising or intended or likely to influence any elector to abstain from voting; or
    3. any name, emblem, slogan, or logo identified with any proposal to which the referendum relates or with any proponent of any such proposal; or
    4. any ribbons, streamers, rosettes, or items of a similar nature in colours that are identified with any proposal to which the referendum relates or with any proponent of any such proposal:
  8. at any time on the day on which the referendum is held before the close of the poll prints or distributes or delivers to any person any card or paper (whether or not it is an imitation voting paper) containing the proposals to which the referendum relates or any of them:
  9. exhibits or leaves in any polling booth any card or paper containing any direction or indication as to how any person should vote or as to the method of voting:
  10. subject to any regulations made under this Act, at any time on the day on which the referendum is held before the close of the poll, within, or at the entrance to, or in the vicinity of, any polling place, -
    1. gives or offers to give any person any written or oral information derived from a main or supplementary roll as to any name or number on the main roll or any supplementary roll being used at the election:
    2. permits or offers to permit any person to examine any copy of the main roll or any supplementary roll being used at the election.
2. Nothing in subsection (1)(c) restricts the publication by radio or television broadcast made by a broadcaster within the meaning of section 2 of the Broadcasting Act 1989 of -
  1. any advertisement placed by the Chief Electoral Officer or a Returning Officer; or
  2. any non-partisan advertisement broadcast, as a community service, by a broadcaster within the meaning of section 2 of the Broadcasting Act 1989; or
  3. any news in relation to the referendum.
3. Nothing in subsection (1)(g) applies to -
  1. any statement, name, emblem, slogan, or logo in a newspaper published before 6pm on the day before the day on which the referendum is held:
  2. any statement, name, emblem, slogan, or logo which does not relate specifically to the referendum and which is exhibited before the day on which the referendum is held in a fixed position and in relation to the New Zealand or regional or campaign headquarters (not being mobile headquarters) of a proponent of a proposal to which the referendum relates on the day on which the referendum is held:
  3. the publication of the name of any proponent of a proposal to which the referendum related in any news which relates to the referendum and which is published in a newspaper or other periodical or in a radio or television broadcast made by a broadcaster within the meaning of section 2 of the Broadcasting Act 1989:
  4. ribbons, streamers, rosettes, or items of a similar nature, that are worn or displayed by any person (not being an electoral official) on his or her person or on any vehicle in colours that are identified with any proposal to which the referendum relates or with any proponent of any such proposal or to a lapel badge worn by any person (not being an electoral official).
4. It is a defence to a prosecution for an offence against subsection (1)(g) that relates to the exhibition in or in view of a public place of a statement, name, emblem, slogan, or logo, if the defendant proves that -
  1. the exhibition was inadvertent; and
  2. the defendant caused the exhibition to cease as soon as the defendant was notified by a Returning Officer or a Deputy Returning Officer that the exhibition was taking place.
5. Nothing in this section applies to any official statement or announcement made or exhibited under the authority of this Act or the Electoral Act 1993.
6. Section 197 of the Electoral Act 1993 does not apply in relation to the first referendum.
Power to remove statements, names, emblems, slogans, or logos
1. The Returning Officer may at any time on the day on which the referendum is held before the close of the poll cause to be removed or obliterated -
  1. any statement advising or intended or likely to influence any elector to abstain from voting; or
  2. any name, emblem, slogan, or logo identified with any proposal to which the first referendum relates or any proponent of any such proposal, -
  which is exhibited in or in view of any public place.
2. Nothing in subsection (1)(c) applies to ribbons, streamers, rosettes, or items of a similar nature which are worn or displayed by any person (whether on his or her person or on any vehicle) in colours that are identified with any proposal or option to which the referendum relates or with any proponent of any such proposal or option or to a lapel badge worn by any person.
3. Nothing in subsection (1) applies to a statement, name, emblem, slogan, or logo which does not relate specifically to the referendum and which was exhibited before the day on which the referendum is held in a fixed position and in relation to the New Zealand or regional or campaign headquarters (not being mobile headquarters) of a proponent of a proposal or option to which the referendum relates.
4. All expenses incurred by the Returning Officer in carrying out the power conferred by subsection (1) may be recovered by the Returning Officer from the persons by whom or by whose direction the statement, name, emblem, slogan, or logo was exhibited, as a debt due by them jointly and severally to the Crown.
5. Section 198 of the Electoral Act 1993 does not apply in relation to the referendum.
Offences
Every person commits an offence and is liable on summary conviction to a fine not exceeding $2,000 who, at the first referendum, -
1. except in accordance with any regulations made under the Electoral Act 1993 or this Act in relation to special voters, obtains possession of or has in his or her possession any voting paper other than the one given to him or her by the Returning Officer or Deputy Returning Officer for the purpose of recording his or her vote, or retains any voting paper in his or in her possession after leaving the polling booth; or
2. does or omits to do an act (other than an act to which section 26 of this Act applies) that if done or omitted to be done at an electoral poll would be an offence under the Electoral Act 1993.
Regulations
The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
1. applying, with or without modifications, for the purposes of this Act, any of the following provisions:
  1. the provisions of section 174 to 177, and of sections 187 to 190 of the Electoral Act 1993:
  2. the provisions of any regulations made under the Electoral Act 1993:
  3. prescribing forms for the purposes of this Act:
2. prescribing the time at which, and the manner in which, special voters may vote (whether at a polling place or not and whether in or outside New Zealand) at the first referendum:
3. prescribing conditions upon or subject to which special voters may vote at the first referendum:
4. prescribing, for the purposes of the first referendum, different methods of voting for different classes of special voters:
5. providing for such other matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration.