Judicial review – Electoral Act 1993 – mandatory orders – statutory timeframe – no element of discretion – whether Electoral Act sufficiently clear on deadline – right of qualification for membership of Parliament
New Zealand Loyal v Electoral Commission  NZHC 2827 per Isac J.
New Zealand Loyal, a registered political party founded by former broadcaster and anti-vaccination activist Liz Gunn, urgently sought judicial review of the Electoral Commission’s refusal to accept an amended party list five days before the 2023 election.
An urgent mandatory order, requiring the Electoral Commission to accept and publish “updated election information”, was sought. If made, the order would have the effect of increasing the number of New Zealand Loyal’s list candidates twelvefold from three.
Opposing the application, the Electoral Commission said the Electoral Act 1993 contained an unqualified requirement in s 127(3)(a) for a party list to be submitted before noon on 14 September 2023. After that deadline, a political party may withdraw its party list, but it may not submit a new one. Therefore, the commission had no power to accept late amendments to a party list. Neither could the court grant the relief sought by New Zealand Loyal.
The court urgently heard a preliminary question of law: should the facts pleaded by New Zealand Loyal be assumed true, can the court make an order requiring the Electoral Commission to accept a party’s amended party list, notwithstanding its lateness?
New Zealand Loyal advanced three grounds of review: the first related to “service quality” concerns about the commission’s online portal, which is used to register party candidates. The second and third raised questions of law. The principal claim of its second ground was that s 146H(1) of the Electoral Act permitted a party secretary, until noon on 15 September 2023, to amend the “bulk information schedule”, which created a conflation between the deadline for submitting the schedule and submitting the party list. The third ground rested on s 12(b) of the New Zealand Bill of Rights Act 1990; New Zealand Loyal said the commission’s refusal to accept a revised party list limited its candidates’ right to participate in the election as list candidates, contrary to the provision.
All three grounds were rejected. The court noted the Electoral Commission’s refusal to accept an amended party list after the statutory deadline was not the exercise of a power conferred by Parliament; it was a requirement of the Electoral Act, which courts are not permitted to suspend. Even if the pleaded allegations regarding the quality and accessibility of the portal were accepted, “that could never provide a basis on which a court could set aside the clear requirements of the Electoral Act”, which was necessary to ensure certainty and impartiality of the electoral system.
The court did not accept the Act was anything other than clear in the distinction between a party list and a constituency candidate bulk nomination schedule. The third ground of review, while not the subject of significant attention at the hearing, was also rejected. The court found New Zealand Loyal’s candidates were not deprived of their qualification to be elected a Member of Parliament. The Electoral Act does not regulate qualification, only the process by which they convert qualification to membership. Therefore, s 12(b) was not engaged, and even if it were, the commission’s refusal to accept late nominations was “prescribed by law”.
The court noted that some criticisms were levelled at the Electoral Commission by the applicant, but ultimately the onus was on a registered party to ensure statutory documents were submitted in time. Cited was Simon France J’s pithy observation: “If you leave it to the last minute and something goes wrong, the responsibility falls squarely on the party.”
Applicable principles: whether the court can issue mandatory order requiring Electoral Commission to override statutory timeframe – whether equitable jurisdiction engaged – whether Electoral Act clear in its language – whether s 12 of the New Zealand Bill of Rights Act engaged.
Held: Application for mandatory order dismissed. Any application for declaratory relief is adjourned to a date after the results of the election are known.