Electoral Act 1993

Elections - Filling of vacancies in other seats

137: Method of supplying vacancy

You could also call this:

"Filling an empty seat in Parliament"

When a seat in Parliament is empty, you need to know how it gets filled. The Electoral Commission gets a direction under section 134 to fill the vacancy. They then find out which unelected candidate from the same party list as the empty seat is next in line.

The Electoral Commission checks if this candidate is still alive and a member of their party. If they are, the Commission asks the candidate if they want to be a Member of Parliament.

If the candidate says yes, the Electoral Commission declares them elected by putting a notice in the Gazette. If the candidate is not alive, not a party member, or does not want to be a Member of Parliament, the Commission asks the next candidate on the list.

They keep doing this until they find a candidate who is alive, a party member, and wants to be a Member of Parliament. If they cannot find a suitable candidate, the seat stays empty until the next general election.

In this case, the Electoral Commission puts a notice in the Gazette saying the vacancy cannot be filled.

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This page was last updated on 18 July 2025

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM309474.

Topics:

Government and voting > Elections

136: Power to resolve in certain cases not to supply vacancy, or

"When to leave an empty seat in Parliament unfilled"

138: Filing of return, or

"Telling the Clerk who was elected to fill a vacant seat"

Part 6Elections
Filling of vacancies in other seats

137Method of supplying vacancy

On receipt of any direction under section 134, the Electoral Commission must proceed to fill the vacancy in the manner prescribed in this section.
The Electoral Commission must determine which of the unelected candidates whose name was included in the same party list as the member whose seat has been declared vacant stood highest in the order of preference.
If that candidate is still alive, the Electoral Commission must inquire of the secretary of the political party on whose list the candidate appeared, whether the candidate remains a member of that party.
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.
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, and so on, in descending order of preference, until one of the candidates who remains a member of the party signifies his or her willingness to be a member of Parliament, in which case the Electoral Commission must declare that person to be elected by notifying the person’s election in the Gazette.
If—
no candidate signifies his or her willingness to be a member of Parliament; or
there is no candidate lower in the order of preference on the party list than the member of Parliament whose seat has been declared vacant,—

Whenever subsection (6) applies, the Electoral Commission must publish in the Gazette a notice stating that the vacancy cannot be filled.

Notes

Section 137: substituted, on 6 December 1995, by section 38 of the Electoral Amendment Act (No 2) 1995 (1995 No 61).
Section 137(1): amended, on 1 October 2010, by section 32(2)(a) of the Electoral (Administration) Amendment Act 2010 (2010 No 26).
Section 137(1): amended, on 28 February 2002, by section 52(1) of the Electoral Amendment Act 2002 (2002 No 1).
Section 137(2): amended, on 1 October 2010, by section 32(2)(a) of the Electoral (Administration) Amendment Act 2010 (2010 No 26).
Section 137(3): amended, on 1 October 2010, by section 32(2)(a) of the Electoral (Administration) Amendment Act 2010 (2010 No 26).
Section 137(4): amended, on 1 October 2010, by section 32(2)(a) of the Electoral (Administration) Amendment Act 2010 (2010 No 26).
Section 137(4): amended, on 28 February 2002, by section 52(2) of the Electoral Amendment Act 2002 (2002 No 1).
Section 137(5): amended, on 1 October 2010, by section 32(2)(a) of the Electoral (Administration) Amendment Act 2010 (2010 No 26).
Section 137(5): amended, on 28 February 2002, by section 52(2) of the Electoral Amendment Act 2002 (2002 No 1).
Section 137(7): added, on 28 February 2002, by section 52(3) of the Electoral Amendment Act 2002 (2002 No 1).
Section 137(7): amended, on 1 October 2010, by section 32(1)(a) of the Electoral (Administration) Amendment Act 2010 (2010 No 26).