In re Electors of Rakahanga [1994] CKHC 6; Misc 201-209, 216, 217 and 225 (6 September 1994)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
MISC NOS. 201-209 inclusive 216, 217 and 225

IN THE MATTER
of the Electoral Act 1966

AND

IN THE MATTER
of objections against the registration of those applicants
in Applications numbered 201-209 inclusive; 216, 217 and 225
as electors on the Rakahanga Electoral Roll

Counsel: The Solicitor General for the Chief Electoral Officer
Mr Mitchell for the Objectors
Mr Puna for the Applicants

Date of Hearing: 6 September 1994 (NZ)
Date of Ruling: 6 September 1994 (NZ)

RULING OF DILLON J

As a result of an all - day intentional conference call, numerous applications and objections were dealt with and considered and end rulings given. Counsel agreed that the twelve applications referred to should be dealt with together since similar facts and circumstances apply; and because the same legal considerations are applicable to all the applicants and all their applications.

Notice of objection in relation to the Application No. 206 refers to Mr Piho Rua Piho who is one of the candidates in the forthcoming by-election for the Rakahanga constituency. Dr Pupuke Robati is the other candidate and it is his party that is responsible for questioning the validity of the various applications that are now under scrutiny. Because of the concession by both Counsel, I shall deal with the circumstances and the law using with Mr Piho's Application No. 206 as the basis.

In issue is the qualification provisions provided in; firstly Section 8(1)(d)(i) of the Electoral Act 1966 which states as follows:

"(i) Has resided in that constituency for a continuous period of not less than three months immediately before the date of his application for registration ....",

secondly Article 28(1)(b) of the Constitution which states as follows:

"(b) He has been resident in the Cook Islands throughout the period of three months immediately preceding his application for enrolment as an elector and has not subsequently qualified as an elector under subclause (2) of this Article";

and thirdly Article 1(1) of the Constitution which states as follows:

"(1) "To reside" in relation to the Cook Islands or to any constituency in the Cook Islands means to have a usual place of abode in the Cook Islands or as the case may be in that constituency notwithstanding any temporary absence for the purpose of undergoing a course of education or of technical training or instruction and notwithstanding any occasional absence for any period not exceeding three months for any other purpose and "resident" and "residing" have corresponding meanings."

In the course of very helpful submissions by both Counsel in the course of this very lengthy international conference call, and in addition by comprehensive written submissions presented by Mr Puna, it has been accepted that:

1. Mr Piho's "usual place of bode" as defined in the Constitution and in the Electoral Act is Rarotonga and not Rakahanga;

2. Mr Piho has been in Rakahanga only two days in the three months prior to his application to become an elector dated 9 August 1994;

3. A ruling by Quilliam J. given on 16 December 1998 correctly interprets the law that is applicable in this instance.

These concessions by Counsel are both helpful and responsible and enable the Court to focus on the narrow issue of qualification when the essential ingredient of such qualifications namely "usual place of abode" is not in issue.

Mr Puna puts his case this way. While Article 28 of the Constitution and Section 9 of the Electoral Act describe the qualifications necessary, it is Article 1(1) of the Constitution which specifically refers by way of interpretation to defining "to reside"; "resident"; and "resided". It is in this context that he relies on the "excused" absences which he claims do not affect the continuous residence - especially the three month period. It is in this context that Mr Puna refers to Mr Piho being residentially qualified for Rakahanga at the date of his application on 9 August 1994, be it by only two days. This, he says, is by virtue of Mr Piho being on the Roll at the preceding general election. Because of that previous qualification, that is on the previous Roll, he had, so Mr Puna submitted, not lost his qualification to be residentially qualified in the Rakahanga electorate because he was within the three month provision already referred to.

Because I am told this ruling must be completed before 10.00 pm New Zealand time in order to comply with the Electoral Act requirements, I simply accept, as both Counsel have, the ruling by Quilliam J already referred to. He ruled that qualification is to be determined in the following way:

"In order to ascertain the qualification of an elector it is necessary to proceed on a two step basis:

1 First it must be determined what is the electors "usual place of abode". For this purpose considerable assistance may be derived from the decisions of the Courts in New Zealand and other countries because the expression has been frequently used and often interpreted.

2. Once a decision has been made as to the electors usual place of abode and it is found that the elector has been absent from that place on a temporary basis then the enquiry shifts to the circumstances in which absence may not be regarded as a disqualifying factor. That inquiry involves a consideration of whether there was:

(a) any temporary absence for the purpose of undergoing a course of education or of technical training or instruction. For this purpose there is no limit in time to the length of the absence.

(b) any occasional absence for any period not exceeding three months for any other purpose."

Applying those criteria, the first step as to "usual place of abode" is conceded by Mr Puna-it is Rarotonga.

Applying the second step, "...that it is found that the elector has been absent from that place on a temporary basis...." the only time Mr Piho has been absent from Rarotonga is the two days that he was in Rakahanga.

By those criteria in the ruling by Quilliam J, Mr Piho does not qualify.

But Mr Puna relies on the Electoral Roll established for the previous election. He says that Mr Piho was on that Roll. That is correct. Therefore the previous qualification, he says, entitled Mr Piho to rely on the three month's exemption.

However that submission is based on the retention of the previous Roll giving efficacy to Mr Piho's residential qualification and as a result, his entitlement to rely on the three months' exemption provisions. If the Roll compiled for the previous general election was still in existence or was the basis for the Roll which is being compiled for the by-election then there may have been substance in that submission. However the Chief Electoral Officer has advised that the previous Roll has been ignored; has not been used in any way; and for the purposes of this by-election a new Roll has been prepared from the new applications that have been received. As a consequence no reliance be placed on the general election Roll which ban disappeared, nor as 4 result can there be any reliance on the three months' exemption which was dependent on the residential qualifications exemplified by the general election Roll. The three months' exemption not therefore apply. All applications for this by - election Roll are new applications and any new application must be based on the qualification provisions in that regard provided for by Section 8 and by Article 28 of the Constitution.

For those reasons the twelve applications for registration as electors must be rejected and the objections by Mr Mitchell as to some and by Mr Puna as to some are therefore sustained.

DILLON J