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Partner Ref:  J M T Salter - Wellington

 

6 August 2001

 

 

The Electoral Officer
Waitakere City Council
Private Bag 9310
Henderson
AUCKLAND

 For:  Lyndal Pedersen

 

 

 

 

 

 

Partner Reference
J M T Salter - Wellington

Writer's Details
Direct Dial: +64-4-495 3438
E-mail Address:
vivienne.wilson@simpsongrierson.com

 

Local Electoral Act Issues

Thank you for your fax of 27 July 2001 in which you raised a number of issues relating to the Local Electoral Act 2001 (the LEA). 

This advice covers the issues relating to the availability of candidate profile statements, reference to website addresses in candidate profile statements, and candidates' names (official title or rank).  We faxed to you on 30 July 2001 our advice to Napier City Council on what constitutes a word, and the 150 word count issue.

1.  Availability of candidate profile statements

1.1  The first issue you have raised is whether a candidate profile statement is a public document and is available upon request.  You have referred to section 55 of the LEA and regulation 29 of the Local Electoral Regulations 2001.
 

1.2  As we understand it, some people may ask to see candidate profile statements once they have been lodged with the nomination papers.  A newspaper has also requested that you provide candidate profile statements to them once nominations close.  On a similar note, Ross Bly from Wellington City Council has also been instructed by a candidate that his or her candidate profile statement is to be embargoed until half an hour before the close of nominations.  Ross Bly has queried whether this is permitted.
 

1.3  Sections 61 and 62 of the LEA relate to candidate profile statements.  Section 61 is silent as to whether or not the candidate profile statement is available for inspection after it has been lodged.  This can be compared with section 55(5) which relates to nomination papers and associated consents.  Section 55(5) provides that any person may inspect any nomination or consent without payment of any fee at any time during ordinary office hours at the office of the electoral officer.
 

1.4  Section 62 deals with the provision of candidate profile statements to electors.  Subsection (1) states that an electoral officer who receives a candidate profile statement in accordance with section 61 must ensure that all prescribed requirements concerning the publication, display, or distribution of the candidate profile statements to electors at the election are complied with.
 

1.5  This section must be read in conjunction with regulation 29 of the Local Electoral Regulations 2001 which states as follows:

 "29  Provision of candidate profile statement to electors

 

(1)  Every voting document for an election that is issued to a voter in person, or posted or otherwise delivered to an elector, must be accompanied by those candidate profile statements that comply with section 61 of the Act submitted at the election for the local government area or subdivision, as the case may be.

 (2)  In addition to subclause (1), a local authority may, during the voting period, publish or display candidate profile statements in any manner that it considers appropriate."

 1.6  Section 62, read in conjunction with regulation 29, sets out the obligations on the electoral officer during the voting period.  The minimum requirement is that candidate profile statements must be provided with the voting documents when they are issued to electors.  Local authorities may also take extra steps during the voting period to publish or display candidate profile statements.
 

1.7  However, these provisions in the Act and regulations do not alter the application of the Local Government Official Information and Meetings Act 1987 (the LGOIMA).  The LGOIMA is not so much concerned with requiring information to be available for inspection (e.g. displayed on a public counter) but it establishes a regime to enable persons to request official information from local authorities.  The LGOIMA operates under the principle of availability so that information must be made available unless there is good reason for withholding it. 
 

1.8  With respect to candidate profile statements, we do not consider that you must have candidate profile statements available for inspection (such as sitting on your public counter) before the voting period begins because the LEA does not require that.  However, if a person requests to see a candidate profile statement you would need to deal with that request in accordance with the LGOIMA.  In this case, it is clear that a candidate profile statement would come within the definition of official information because that is defined as meaning any information held by a local authority.  (The limited exceptions to that definition would not apply.)
 

1.9  Under the LGOIMA, a local authority may refuse an official information request only on one or more of the reasons set out in section 17.  The reasons include:
 

• That, by virtue of section 6 or section 7, there is good reason for withholding the information.
• That the information requested is or will soon be publicly available.

 1.10  Because the candidate profile statements will be available from 21 September 2001 (i.e. the beginning of the voting period), it is possible that a local authority could refuse the request for information because the information requested is or will soon be publicly available.  However, given that it is over a month away before the candidate profile statements will be distributed to voters this probably does not come within the meaning of "soon". 
 

1.11  In this case, the reasons in section 6 would not apply.  In considering whether or not section 7 applies, a local authority must go through a two-step process, by –
 

• Identifying whether one of the withholding grounds in that section applies.
• Considering whether there are any public interest factors which render it desirable in the public interest to make the information available.

 1.12  In section 7, we consider that the only possible withholding grounds could be –
 

• To protect the privacy of natural persons; (section 7(2)(a))
• To protect information that is subject to an obligation of confidence.  In this case, the requirements of either section 7(2)(c)(i) or (ii) would need to be met;
• To prevent the disclosure or use of official information for improper gain or improper advantage.  (section 7(2)(j)).

 1.13  In our opinion, it would be difficult to satisfy either of the first two grounds listed above.  This is because candidate profile statements are provided to inform voters about candidates and their policies.  As the Select Committee noted in their commentary to the Local Electoral Bill,-
 

"the provision of candidate profile statements is designed to support the principle of all qualified persons having a reasonable and equal opportunity to cast an informed vote.  The statements are intended to provide information about candidates who may not be well known, particularly those candidates who are not incumbents."

 

1.14  It is just conceivable that the release of a candidate profile statement might breach the personal privacy ground if it is disclosed before the voting period begins in circumstances where the candidate had genuine reasons for maintaining privacy before that time.  However, this would be unlikely. 
 

1.15  We also note that a person cannot contract out of the LGOIMA provisions with a local authority by, for example, stating that a candidate profile statement is embargoed until a particular date.  In this situation, the candidate profile statement would not be subject to an obligation of confidence that would meet the requirements of section 7(2)(c).  Section 7(2)(c) contains quite a strict test.  Section 7(2)(c) aims to protect information that is subject to an obligation of confidence, where the making available of the information –
 

• Would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied; or
• Would be likely otherwise to damage the public interest.

 

1.16  On the face of it, it might be possible to apply the ground relating to the prevention of improper advantage.  For example, if a prospective candidate wishes to see another candidate's profile statement in order to "out do" that other candidate.  However, the Ombudsman has commented on this section, stating that it is not an easy to test to meet.  One of the difficulties is that a requester need not specify why they want the information.  It is therefore difficult to determine whether they are obtaining the information for an advantage and whether or not that is improper.
 

1.17  Taking section 7 into account, we think it is difficult to argue that this section provides a ground for withholding information.  In any case, if a ground did apply, you would still need to apply the public interest test.  You would need to consider whether there are any public interest factors which render it desirable in the public interest to make the information available.  In this respect, if it was in the public interest that candidate profile statements were to be made available only during the voting period, we would have expected the LEA to have made express provision for this. 
 

1.18  Consequently, if a person asks to see a candidate profile statement outside the voting period, it is unlikely that there will be grounds for declining the request under the LGOIMA. 
 

1.19  We note that there has been some discussion about whether or not you must supply a copy of the candidate profile statement to the requester (as opposed to making the document available for inspection).  Section 15(1) of the LGOIMA sets out the ways in which a local authority must make the information available.  These include giving the requester a reasonable opportunity to inspect the document or by providing the requester with a copy of the document.
 

1.20  Notably, section 15(2) provides that the local authority must make the information available in the way preferred by the requester unless to do so would –
 

• Impair efficient administration; or
• Be contrary to any legal duty of any local authority in respect of the document; or
• Prejudice the interests protected by section 6 or section 7 and (in the case of the interests protected by section 7) there is no countervailing public interest.

 1.21  In this case, we think it would be difficult to establish any of those matters.  Therefore, if a person asks for a copy of a candidate profile statement, we consider that it would be difficult to refuse to provide that person with a copy of the statement.
 

1.22  The only other comment we make about providing candidate profile statements is that section 61(6)(b) of the LEA authorises an electoral officer to include in or with any candidate profile statement that is published, displayed, or distributed, a disclaimer concerning the accuracy of the information contained in the statement that the electoral officer considers appropriate.  We suggest that you include a disclaimer on candidate profile statements disclosed before the voting period begins.
 

2.  Reference to Website address in candidate profile statement

2.1  The next issue you have raised is whether a candidate profile statement may include a reference to a website address. 

 2.2  Section 61(2)(c) of the LEA is the relevant section.  It provides that the candidate profile statement must –
 

"…be confined to information concerning the candidate (including any group or organisation with which the candidate claims under section 55(4) to be affiliated, or his or her status as an independent candidate), and the candidate's policies and intentions if elected to office; and …".

 

2.3  The matter is not free from doubt.  However, on balance, we consider that a reference to a website address does not come within section 61(2)(c).  Essentially the reference is not information concerning the candidate and the candidate's policies and intentions if elected to office.  Rather the reference is an instruction on how to find out more information about the candidate. 
 

3.  Official title or rank

3.1  The other issue you have asked us about is the definition of an official title or rank.  You note that section 56(c)(iii) of the LEA effectively provides the opportunity for candidates to include an official title or rank on their nomination paper.  We agree with this conclusion. 
 

3.2  Section 56 of the LEA provides as follows:
 

"56.  Name of candidate—

 

An electoral officer must not accept the nomination of a candidate if the electoral officer is not satisfied, by the evidence (if any) that the electoral officer requires, that the name under which the candidate is nominated is—

(a)  the name under which the candidate's birth was registered; or

(b)  the name which the candidate adopted by deed poll or by statutory declaration under section 21 of the Births, Deaths, and Marriages Registration Act 1995, at least 6 months before nomination day; or

(c)  the name by which the candidate was commonly known during the 6 months before nomination day, not being a name that—

(i)  might cause offence to a reasonable person; or

(ii)  is unreasonably long; or

(iii)  without adequate justification, is, or includes, or resembles an official title or rank; or

(iv)  is likely to cause confusion or to mislead electors."

 

3.3  Under section 56, the electoral officer is entitled to reject the nomination form if a prospective candidate has used an official title or rank without adequate justification.  If the electoral officer is entitled to reject the nomination form because of this, then a prospective candidate is entitled to use an official title or rank in the first place.  In our view, the official title or rank becomes part of the person's name. 
 

3.4  On a similar note, we are also of the view that if the name under which the candidate is seeking nomination includes an official title or rank and it is adequately justified, the official title or rank must be included on the voting document.  We set out reasoning for this conclusion first.  Then we consider what constitutes an official title or rank. 
 

3.5  For the purposes of the triennial general election on 13 October 2001 the form of the voting document to be used is that prescribed by sections 25 and 25A of the Local Elections and Polls Act 1976 (the LEAPA).  Section 157 of the LEA states as follows: 
 

"157.  Transitional provisions relating to voting documents—

 

For the purposes of the triennial general election and any poll to be held on 13 October 2001,—

(a)  sections 75 to 77 do not apply to voting documents:

(b)  sections 25 and 25A of the Local Elections and Polls Act 1976 apply to the voting documents to be used at the election and any poll, and those sections and the provisions referred to in those sections apply—

(i)  as if every reference to a ``voting paper'' or ``voting papers'' were a reference to a ``voting document'' or ``voting documents'', as the case may require; and

(ii)  with any modifications specified in regulations made under this Act; and

(iii)  with any other necessary modifications."

 

3.6  Sections 25 and 25A of the LEAPA apply with a number of modifications as set out in section 157(b). 
 

3.7  Section 25(1) of the LEAPA provides that the voting documents to be used at any election must be in form 6 in the First Schedule.  It also provides that the names on the voting document must appear in alphabetical order of surnames, showing party accreditations or other designations (if claimed and not disallowed), and, where necessary, such additional description as may be necessary to identify the candidates or any of them.
 

3.8  Form 6 in the First Schedule sets out how the names are to be shown, i.e. "Cooper, Geoffrey", "Rangi, Henare".  In the case where the names are the same, they are distinguished by different occupations. 
 

3.9  The form also states in its notes, "in relation to the insertion of party accreditations or other designations, see section 25(1) of the Act", and, also "where two candidates with the same, or very similar, names are standing, an additional description may be added following the name of the candidate as provided for by section 25(1) of the Act."
 

3.10  The fact that form 6 has only specified the actual names with no title or rank suggests that under the LEAPA, an official title or rank could not be shown.  Similarly, by implication section 13 of the LEAPA did not appear to allow for nominations to include an official title or rank as part of a person's name.  This suggests that a voting paper could not include an official title or rank. 
 

3.11  However, because section 25 of the LEAPA must be read with the "necessary modifications" and it appears that the concept of a name in the LEA is wider than in the LEAPA, we consider that if a person is nominated under a name including an official title or rank, then that official title or rank should be included on the voting document (eg, "Cooper, Sir Geoffrey").
 

4.  What is an official title or rank?

4.1  We have checked other legislation and case law to see whether there has been any discussion of what constitutes an official title or rank.  Section 18 of the Births, Deaths, and Marriages Registration Act 1995 allows the Registrar-General of Births, Deaths, and Marriages to not include a name on the register if it is undesirable in the public interest for the person to bear that name.  Section 18(8) states that for the purposes of section 18, it is undesirable in the public interest for a person to bear a name or combination of names if, and only if, -
 

(a)  It might cause offence to a reasonable person; or

(b)  It is unreasonably long; or

(c)  Without adequate justification, it is, includes, or resembles, an official title or rank.

 

4.2  We have identified two recent cases where the Registrar-General has refused to include a name on the basis that section 18(8)(c) applies.  In Ojstersek v Registrar-General [1997] NZFLR 1006, the Family Court heard an appeal where the Registrar-General refused to register a person's first name as "Sir".  In this case, the Judge did not discuss whether "Sir" constituted an official title because it clearly did so.  However, the Judge was of the view that the appellant had not established that the use of "Sir" was adequately justified.  The Judge stated that:
 

"Most importantly, if people were to be permitted generally to name their children with official titles, particularly as first names, the practice could become more widespread and ultimately create confusion as to whether or not the title was part of a person's name, or signified an honour or rank, officially conferred."

 

4.3  The second case we have located is Naidu v Registrar-General [1998] NZFLR 141.  In this case, the appellant wished her child to have "Emperor" as his first name.  The Registrar-General regarded the name as an official title or rank and pointed to the fact that a passport issued to a person with the first name "Emperor" might cause confusion overseas.  The Family Court briefly considered other names that would clearly be in breach of section 18(8)(c), those being "Prime-Minister", "General", "Registrar" and "Registrar-General".
 

4.4  The Court went on to say that "Duke" is not generally registered as a first name but is acceptable as a second.  The names "Raja" and "Earl" although denoting a rank or title had been registered as first names.
 

4.5  In this case the Court decided that there was adequate justification to use the name "Emperor" because it was not a title or rank having currency in New Zealand.
 

4.6  As you can see, the cases have approached the issue of what constitutes an official title or rank on an adhoc basis.  Furthermore, the Ojstersek case points to the conclusion that section 18(8)(c) relates to an official title or official rank, not just an official title.
 

4.7  We have checked to see whether any other statutes refer to "official title or rank".  There are several references to the word "rank" and these can be categorised into the following types of people who hold rank:
 

• Members of the Armed Forces:
• Members of the Police:
• Members of the Fire Service holding Fire Service rank:
• Judges.

 

4.8  Section 62(2) of the Law Practitioners Act 1982 also referred to a barrister holding the rank of Queen's Counsel.  The dictionary definition of the term "rank" is somewhat wider.  The Shorter Oxford Dictionary defines rank as "high social position, professional, military, distinction.  A distinct class or level within a hierarchy, a person's professional etc position or status."  In our opinion, "rank" should be interpreted in a more limited sense than this definition because of the way in which the term has been used in other pieces of legislation in New Zealand. 
 

4.9  We have also checked the dictionary definitions of the words "official" and "title".  Spiller's New Zealand Law Dictionary (5th Edition) defines title as "an addition to a person's name, implying that he or she has some honour, office or dignity.  [Dame; knight]." 
 

4.10  The Shorter Oxford Dictionary defines "official" as –
 

"of, pertaining to, or required by duty.  3.  Of or pertaining to an office or position of trust, authority, or service; of or pertaining to the duties or tenure of an office; formal, ceremonious.  Emanating from or having the sanction of a person or persons in office; authorised or supported by a government etc; properly authorised formally accepted or agreed.  "

 

4.11  "Title" is defined as –
 

"a descriptive or distinctive appellation; a name, a denomination, a style ... an appellation attached to an individual or family in virtue of rank, office, attainment etc; an appellation of honour pertaining to a person of high rank."

 

4.12  It is somewhat difficult to combine all of this research into a set of clear rules simply because there does not seem to be an agreed interpretation about what the phrase means.  We think that there are some things which clearly come within the phrase of "official title or rank".  However, there are also some grey areas where a person may try to pass off his or her occupation as an official title or rank.
 

4.13  In our opinion, the following constitute an official title or rank:
 

(a)  An honour bestowed on a person by the Government such as a knighthood.  For example, "Sir", "Dame" which occur before a person's first name and OBE which is placed after a person's surname[1]:

(b)  An official designation or appointment in the Government such as a Registrar-General, the Auditor-General, or a Registrar:

(c)  The holding of a rank in the New Zealand Defence Force, the New Zealand Police, the Fire Service or the judiciary.  For example, Colonel, Sergeant, Private, Rating, Detective Inspector, Constable, Commander, Justice, Judge, or Master.

 

4.14  The grey areas arise with terms such as doctor or professor.  These terms seem to resemble an official title.  If the candidate can provide adequate justification for the use of the title, we think it would be difficult not to accept the candidate's nomination.  However, similarly, we do not think that terms such as "nurse", "lawyer", or "teacher" constitute an official title.  Nor do we consider that a degree constitutes an official title such as "BSc", "MBA", or "LLB".
 

4.15  The difficulty is in deciding what constitutes an official title in these grey areas and applying a consistent rule.  Perhaps one way to determine the issue might be to approach it from the "ordinary person".  What would an ordinary person consider is an official title?
 

4.16  If the candidate can establish adequate justification for using the official title or rank, the electoral officer must still be satisfied under section 56 of the LEA that the name under which the candidate is nominated is the name by which the candidate was commonly known during the 6 months before nomination day.
 

4.17  We do not think this presents any great problem with respect to the official titles or ranks referred to in paragraphs 4.13(a) or (c) above.  However, we do think this raises an issue with respect to those referred to in paragraph 13(b).  In our opinion, a person would not commonly be called "Registrar-General Robyn Wilson" or "Registrar Jim Murphy" etc.  In this case, the electoral officer will need to be satisfied by evidence whether or not a person is commonly known in this way. 
 

5.  Conclusion

5.1  The new Act has raised a number of issues relating to candidate profile statements, nominations, and voting documents.  These issues are technical and difficult. 
 

5.2  To sum up our views on the issues at hand –
 

• A candidate profile statement constitutes "official information".  If a request is made for a candidate profile statement, we think it would be difficult to withhold it under the LGOIMA.  We also think that it would be difficult to refuse to provide the candidate profile statement in the manner preferred by the person who requested it.
• On balance, we do not consider that a candidate profile statement may include a reference to a website address.
• We consider that a nomination paper may include an official title or rank.  We also consider that a voting document should include the official title or rank as well.
• There is a certain difficulty in determining what constitutes an official title or rank.  We have attempted to define the clear cases in paragraph 4.13 above.  However, there will always be some "grey areas" which may present difficulties. 

 

5.3  What constitutes an official title or rank is one area where we think consistency is important.  We suggest that guidelines be developed which could be included in the SOLGM Code of Good Practice for the Management of Local Elections and Polls.
 

5.4  We trust this clarifies matters but please call us if you have any further queries.
 

 

Yours faithfully

SIMPSON GRIERSON

 

 

 

 

Jonathan Salter/Vivienne Wilson

Partner/Senior Associate

 

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[1]  See the Cabinet website at http://www.dpmc.govt.nz/honours/index.html which contains more details about the New Zealand Honours system.