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Partner Ref: J M T Salter - Wellington

Official title or rank

Official title or rank

We refer to your email of 30 July 2001. You have asked whether section 56(c)(iii) of the Local Electoral Act 2001 (the LEA) allows for a candidate's official title or rank to be shown on the nomination form, and by implication on the voting document. You have also asked how far the words "official title or rank" extend.

You note that Doug Eckhoff of the Electoral Commission states that section 150(11) of the Electoral Act 1993 specifically precludes the use of ranks or titles at parliamentary elections.

In this opinion, we consider the provisions of the LEA first. Then we determine whether or not an official title or rank may be included on a nomination form and a voting document. We also consider what constitutes an official title or rank.

1. Nomination form

1.1 Section 55 of the LEA provides as follows:

"(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."

1.2 Under section 55(2), an electoral officer must not accept a nomination unless it complies with sections 55(1) and (4).

1.3 Section 56 of the LEA states that -

"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."

1.4 Section 56 sets out the circumstances under which an electoral officer must not accept a nomination in relation to the name of a candidate. According to that section, an electoral officer must not accept a nomination if the electoral officer is not satisfied 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. The name may not be a name that without adequate justification is, or includes, or resembles an official title or rank.

1.5 This section is wider than section 13 of the Local Elections and Polls Act 1976 (the LEAPA). Under that section, the returning officer was required to reject a nomination if the returning officer was not satisfied that the name under which the candidate was nominated was –

(a) the name under which his birth was registered, with any alteration or addition made thereto under section 17 of the Births and Deaths Registration Act 1951; or

(b) in the case of a person who has been adopted, the name conferred on him by the adoption order; or

(c) the name by which he was commonly known on the date 6 months immediately preceding nomination day; or

(d) the name which he had adopted by deed poll registered under section 17A of the Births and Deaths Registration Act 1951 (as inserted by section 2 of the Births and Deaths Registration Amendment Act 1953) at least 6 months before nomination day.

1.6 By implication, section 13 of the LEAPA did not allow a candidate to include in his or her name an official title or rank on the nomination form because this was not something that the returning officer could be satisfied of according to section 13.

1.7 However, in our opinion, section 56 of the LEA implies that a name included on a nomination form may include an official title or rank. If the electoral officer is entitled to reject the nomination form because a prospective candidate has used an official title or rank without adequate justification, then a prospective candidate is entitled to use an official title or rank in the first place and it is part of the person's name.

2. Voting document

2.1 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 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."

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

2.3 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.

2.4 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.

2.5 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."

2.6 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, as discussed above, 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.

2.7 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.

2.8 We confirm that there is no section equivalent to that of section 150(11) of the Electoral Act 1993 which expressly prohibits (except in certain cases) an occupation, title, honour, or degree in relation to a candidate's name or political party being included on the ballot paper for a parliamentary election.

3. What is an official title or rank?

3.1 We have checked other legislation and case law to see whether there has been any discussion of what constitutes an official title or rank. Section18 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.

3.2 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."

3.3 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".

3.4 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.

3.5 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.

3.6 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.

3.7 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.

3.8 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.

3.9 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]."

3.10 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. "

3.11 "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."

3.12 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.

3.13 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.

3.14 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".

3.15 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?

3.16 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.

3.17 We do not think this presents any great problem with respect to the official titles or ranks referred to in paragraphs 3.13(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.

4. Conclusion

4.1 In our opinion, the nomination paper may include a candidate's official title or rank. These should also be included in the voting documents.

4.2 There is a certain difficulty in determining what constitutes an official title or rank. We have attempted to define the clear cases in paragraph 3.13 above. However, there will always be some "grey areas" which may present difficulties.

4.3 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.

4.4 We trust this clarifies mater for the present but please call us if you have any further questions.

Yours faithfully

SIMPSON GRIERSON

Jonathan Salter/Vivienne Wilson

Partner/Senior Associate

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