It's been said that Winston Peters is NZ's great political survivor. He's also been the beneficiary of a fair bit of legal luck along the way.

Let's assume, purely for the sake of argument, that it turns out Mike Sabin actually didn't need to resign from Parliament. Which means that there didn't need to be a by-election in Northland back in 2015. Which in turn means that Winston Peters shouldn't really be the electorate MP for Northland.

Of course, you can't undo history and we are where we are whatever the fairness of the matter. But Winston's luck in finding his way into the Northland MP's offices allows me to trot out the hoary old tale of how he first entered Parliament.

You see, back at the 1978 General Election Winston Peters stood for National in the Hunau electorate. After all the votes were counted and scrutinised, the Labour candidate Mr Malcolm Douglas was declared the winner with a majority of 301 votes. Reasonably close, but remember that getting even one more vote than your rival is enough to win.

Except matters didn't rest there. Because Peters (with some help from his National colleagues) noticed something about some of the votes that had been counted in Mr Douglas' favour. At the time the Electoral Act specified that voters should cast their votes by crossing off all the candidates except for the one that they supported - which was a daft voting method, but there you are. A number of voters, however, had done the more obvious thing and just put a tick next to the candidate that they most liked. And the electoral officials in Hunua had counted these votes, on the basis that it was clear what the voter intended and so a technical failure to follow the letter of the Electoral Act should not invalidate the resulting vote.

Mr Peters, however, launched an electoral petition challenging the officials' decision. He argued that the law was the law - you had to vote like it said, and if you didn't then your vote was "informal" and so should not be counted. And the High Court (or, as it was called then, Supreme Court) agreed with him. Votes where a person ticked rather than crossed off should not have been included in the final result. As a result, nearly 500 votes were disallowed and Winston Peters gained a majority of 192 votes ... making him the new member for Hunua.

Winston Peters enters Parliament.

Well, OK - not the ideal way to debut, but a win is a win and it doesn't matter how the points go on the board. Or other sporting related cliche. What's the point of this story?

The point is what happened next. Because while the result of the electoral petition is absolutely final - you cannot challenge or appeal the outcome in any higher court or other place - the point of law that the High (old Supreme) Court had established was troubling. Lots of voters got confused in the polling booth and ticked instead of crossed, and those voters tended to support the Labour Party rather than National. So the Labour Party was very keen to have the interpretation of the Electoral Act's provisions overturned for future elections.

It therefore filed an appeal in the Court of Appeal, in a case called Wybrow v Chief Electoral Officer (there's a very good account of it here.) That Court then decided that it could hear the appeal as it involved only the point of law, not a challenge to the result of the electoral petition. And it then went on to hold that the High (old Supreme) Court had got that point of law wrong. What mattered is not whether a voter follows the letter of the law telling them how to vote, but rather whether a returning officer is able to discern what is the voter's intent. If she or he can do so, then the vote must be counted.

Which means that the electoral petition decision which returned Winston Peters to Parliament was wrongly decided - the 500-odd votes shouldn't have been stripped from Mr Douglas and he ought to have remained the MP for Hunua. But, because an electoral petition outcome cannot be appealed or overturned, that didn't happen. Instead, Winston Peters sat on as MP for the electorate until the 1981 election (which he lost, before being reelected in Tauranga in 1984).

All of which, I regularly inform my students with a great deal of glee, means that Winston Peters' political career was founded on a fundamental mistake. 

Comments (12)

by Ian MacKay on April 12, 2016
Ian MacKay

Currently we seem to have some parties playing undercover dirty tricks. At least Winston's efforts were in full view.

by Anne on April 12, 2016
Anne

Someone will correct me if I'm wrong, but I understood there was a further problem uncovered during the course of the judicial re-count. It related to the rule that a person must be domiciled in NZ for 12 months before being entitled to cast a vote. A group of Pacific Islanders were enrolled who apparently did not meet the 12 month criteria and their votes were therefore nullified. I don't recall the number involved but believe it might have been around 150 people. It would also have played a role in the final outcome of the recount. 

by Andrew Geddis on April 12, 2016
Andrew Geddis

Hi Anne,

No - that wasn't an issue in Re Hunua Electoral Petition. There were a number of other issues in the case caused by the state of NZ's electoral rolls at the time, and in particular the relationship between the Maori and General rolls, but there weren't enough affected votes to change the result.

(In another irony to the case, however, the High (then Supreme) Court found in the course of its judgment that the errors in those rolls meant that Winston Peters himself was not entitled to vote in Hunua, and so threw out his vote! But this didn't affect his right to stand as a candidate or represent the electorate.)

It was only after the "ticked ballots" were re-examined and excluded that the result changed.

by Anne on April 12, 2016
Anne

It happened somewhere in the 1970s. Perhaps another closely contested South Auckland electorate. I do have memories of some rather grubby stuff going down during that decade!  No coincidence Rob Muldoon was PM at the time.

by Rich on April 12, 2016
Rich

In relation to things we mustn't talk about, could I ask an academic question?

At what point does a website have to comply with the laws of a country that it isn't present in, but is readable from? I'm thinking of things like the UK superinjunction over some celebrities nookie arrangements, but also sites like Reddit or the Guardian and NZ suppression orders.

Generally, most media doesn't seem to feel it has to comply with the lese-majeste laws of Thailand and Turkey, or the blasphemy laws of Iran and Ireland, but it does seem to defer to more "western" powers. Is there a legal basis for this? And how would NZ seek to enforce a suppression order in the UK or the US, or vice versa?

by John Fouhy on April 12, 2016
John Fouhy

Wait, are you saying that [redacted] is [redacted] who was [redacted]? You say you "all know" but I had no idea (until now).

[ed: No-one else please say anything else like this, because I'd prefer not to face a contempt of court action. Thanks.]

by Andrew Geddis on April 13, 2016
Andrew Geddis

@Rich,

There's 2 questions there. The first is the technical legal reach of injunctions/contempt laws from one jurisdiction to another. I just don't know enough about all the various rules in each place to answer this. But as regards the second - how could another country enforce its injunctions/contempt laws in NZ - the answer is "not very easily at all". They'd have to try and extradite a publisher and charge them in that country ... which just isn't going to happen. Which is why I'm quite happy to post this link without any concerns.

(Incidentally, that's also why NZers don't have to worry at all about breaching the lese-majeste laws of Thailand and Turkey with what they say/write in NZ - that wouldn't be an extraditable offence under NZ law.)

by John Fouhy on April 13, 2016
John Fouhy

So I guess I was right? 

[ed: No - that shouldn't necessarily be your conclusion. You (and other readers) may think whatever you like, but speculation linking to events (whether correct or not) puts me as author and publisher at potential risk and so I'd prefer it did not take place.]

I don't get it. I had literally no idea there was any connection, until you spelled it out for me. Why haven't you broken the law already?

[ed: I didn't spell out anything. I am simply commentating on the public political aspects of some matters that cannot be further discussed. I have made no mention of what those matters are and I will continue to redact any speculation as to what they may be.]

I apologise for posting privileged information. But I genuinely feel I added nothing that wasn't here already. I mean, how could I? I knew nothing privileged; my only sources of information about NZ are stuff.co.nz and a few blogs like yours.

[ed: Which may have led you to make connections that may or may not be correct. Let's leave matters there.]

by KJT on April 13, 2016
KJT

I would not be too certain about what is an "extraditable" offence under NZ law.

My understanding of Kim D Com's alleged offences are that they also are not in breach of NZ criminal law?

Which did not prevent the invasion of his home, and possible extradition, at the behest of the USA?

 

by Andrew Geddis on April 13, 2016
Andrew Geddis

@KJT,

You cannot be extradited from New Zealand for anything except an "extraditable offence", the definition of which requires that:

"if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had occurred within the jurisdiction of New Zealand at the relevant time it would, if proved, have constituted an offence punishable under the law of New Zealand for which the maximum penalty is imprisonment for not less than 12 months or any more severe penalty."

Dotcom has claimed that the actions he is being extradited for do not meet this test, but that was rejected by the District Court (and is currently on appeal to the High Court).

by Graeme Edgeler on April 14, 2016
Graeme Edgeler

"if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had occurred within the jurisdiction of New Zealand at the relevant time it would, if proved, have constituted an offence punishable under the law of New Zealand for which the maximum penalty is imprisonment for not less than 12 months or any more severe penalty."

The US does not rely on this definition. 

by mudfish on April 14, 2016
mudfish

Incidentally, that's also why NZers don't have to worry at all about breaching the lese-majeste laws of Thailand and Turkey with what they say/write in NZ - that wouldn't be an extraditable offence under NZ law.

So if you happen to want to go on a holiday to such desirable destinations, you'd better watch what you might have posted, huh? 


Post new comment

You must be logged in to post a comment.