How a list vacancy is filled

Some of the reporting around how a list vacancy is filled, has been a bit mixed – referring to party’s constitutions, rather than the Electoral Act. Here’s how it will work:

1. Speaker receives resignation of List MP and publishes it in the Gazette – s134(1)
2. Governor-General instructs the Electoral Commission to supply the vacancy – s134(2)
3. Electoral Commission determines which “unelected candidate” was ranked highest on the Labour list, which is Judith Tizard – s137(2)
4. Electoral Commission checks if they are still alive
5. Electoral Commission checks with the Secretary of the Labour Party that the candidate is still a member – s137(3)
6. Electoral Commission checks with the candidate is they are willing to become a Member of Parliament – s137(4)
7. If the candidate is dead, not a member or declines, then repeat steps 3 to 6 for the next person on the list – s137(5)
8. If the candidate is alive, still a member and accepts then they notify that candidate’s election in the Gazette – s137(4)
9. If for some reasons, no list candidate is eligible or accepts, then that seat is left vacant until the election – s137(6)

We don’t know if Darren has already sent his resignation into Lockwood Smith, or is holding off doing so until it is clear who will replace him. If he has already resign then those on the list may need to make their mind up very quickly – even by end of Monday.

The law is unclear about what would happen if a candidate was undecided. I guess they’d probably give them a small amount of time to decide, but ultimately a lack of an assent would be taken as declining the seat, as the xact wording is:

If that candidate is still alive and remains a member of that political party, the Electoral Commission must then inquire of that candidate whether that candidate is willing to be a member of Parliament, and if that candidate so indicates his or her willingness, the Electoral Commission must declare that person to be elected by notifying the person’s election in the Gazette.

and

If that person has died or is no longer a member of the political party or does not signify his or her willingness to be a member of Parliament, the Electoral Commission must proceed to make the inquiries described in subsections (3) and (4) in respect of the following candidate in order of preference on the party list

So a “I don’t know” would not qualify as signifying willingness, and it would drop to the next person.