Arthur William Taylor v The Attorney–General HC AK

• Jurisdiction: New Zealand
• Judge: Brown J
• Judgment Date: 11 July 2014
• Neutral Citation: [2014] NZHC 1630
• Docket Number: CIV-2013-404-4141
• Court: High Court
• Date: 11 July 2014

Under The New Zealand Bill of Rights Act 1990, the Judicature Amendment Act 1972, Part 30 of the High Court Rules

In The Matter of a declaration of inconsistency

BETWEEN

Arthur William Taylor

First Applicant

Hinemanu Ngaronoa, Sandra Wilde, Kirsty Olivia Fensom, and Claire Thrupp

Second, Third, Fourth and Fifth Applicants

and

The Attorney-General of New Zealand

First Respondent

The Chief Executive of the Department of Corrections

Second Respondent

[2014] NZHC 1630

CIV-2013-404-4141

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application to strike out the applicants’ claim for a declaration that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (EDSPAA) was inconsistent with the right to vote under s12(a) New Zealand Bill of Rights Act 1990 (NZBORA) (electoral rights — citizen or over the age of 18 years has the right to vote in elections) — EDSPAA placed a blanket ban on serving prisoners voting — previous provision had only disqualified those who were in particular categories (eg life sentences) — a report on the amendment under s7 NZBORA (A-G to report to Parliament where Bill appears to be inconsistent with Bill of Rights) had considered that a blanket ban raised an apparent inconsistency with s12 NZBORA and could not be justified under s5 NZBORA (justified limitations) — whether there was jurisdiction to issue a declaration of inconsistency — whether issuing such an order raised an issue of comity as Parliament had enacted the amendment notwithstanding the s7 NZBORA report — whether the court should refuse a declaration of inconsistency in stand alone applications in an abstract context where it had not had occasion to engage with the s5 NZBORA justified limitation process.

Appearances

First Applicant on own behalf

R Francois for the Second-Fifth Applicants

J C Pike QC for the Respondents

JUDGMENT OF Brown J

Contents

Introduction	[1]
The legislative context	[2]
The statement of claim	[8]
The strike out application and opposition	[19]
An issue left open	[23]
Respondents’ submissions in support of striking out	[39]
Applicants’ submissions in opposition	[45]
Approach to the application	[49]
Article 9 of the Bill of Rights 1688	[53]
The “wider principle” of comity	[61]
Jurisdiction or practice?	[69]
Analysis	[79]
Respondents’ first proposition	[79]
Respondents’ second proposition	[87]
Respondents’ third proposition	[89]
Second, third and fourth causes of action	[93]
The proper parties	[95]
Disposition	[100]

Introduction

1 The primary relief sought in this proceeding is a declaration that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (“the 2010 Amendment”) is inconsistent with the right to vote under's 12(a) of the New Zealand Bill of Rights Act 1990 (NZBORA). 1 The key issue on the respondents’ strike out application is whether this Court has jurisdiction to entertain the proceeding seeking such relief.

The legislative context

2 The right to vote in New Zealand is protected by s 12(a) of the NZBORA which provides:

12 Electoral rights

Every New Zealand citizen who is of or over the age of 18 years —

• (a) Has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot;

• …

3 In order to be qualified to vote in New Zealand a person must be both qualified to register and be registered on the Electoral Roll. 2 As originally enacted the Electoral Act 1993 (“the Act”) provided for the disqualification of certain imprisoned persons from registration as electors as follows:

80 Disqualifications for registration

• (1) The following persons are disqualified for registration as electors:

  • …

  • (d) A person who, under —

    • (i) A sentence of imprisonment for life; or

    • (ii) A sentence of preventive detention; or

    • (iii) A sentence of imprisonment for a term of 3 years or more, —

      is being detained in a penal institution:

    • …

4 On 16 December 2010 the 2010 Amendment came into force. Relevantly it amended s 80(1)(d) to read:

Section 6 of the 2010 Amendment provided that the existing status of persons disqualified or not disqualified for registration by s 80(1)(d) was not affected by the amendment.

• (d) a person who is detained in a prison pursuant to a sentence of imprisonment imposed after the commencement of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010:

5 The procedure for giving effect to the disqualification was provided in s 81 which, as amended by the 2010 Amendment, provided:

81 Detention in prison pursuant to sentence of imprisonment

• (1) Where a person who has been sentenced to imprisonment is received into a prison in which that person is to serve the whole or part of the sentence, the prison manager of that prison shall, not later than the seventh day after the day on which the prisoner is received into the prison, forward to the Chief Registrar of Electors a notice —

  • (a) Showing the name, previous residential address, and date of birth of that person; and

  • (b) Showing the name and address of the prison.

  • (c) Repealed. 3

• (2) The Chief Registrar of Electors shall, on receiving a notice under subsection (1) of this section, forward a copy of that notice to the appropriate Registrar of Electors.

6 When the Bill was introduced in February 2010 the Attorney-General presented to the House of Representatives a report pursuant to s 7 of the NZBORA which included the following statements:

Is the apparent inconsistency justified in a free and democratic society?

• 2. The apparent inconsistency with the Bill of Rights Act arises from cl 4 of the Bill, which amends the Electoral Act 1993 to disqualify from registration as an elector any person who, under detention pursuant to a conviction, is being detained in a prison. The effect would be a blanket disenfranchisement of convicted persons detained in prisons on election day.

• …

• 9. I consider that a blanket ban on prisoner voting raises an apparent inconsistency with s 12 of the Bill of Rights Act.

• 10. Where a provision is found to be apparently inconsistent with a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is justifiable in terms of s 5 of that Act. The s 5 inquiry is essentially two — fold: whether the provision serves an important and significant objective, and whether there is a rational and proportionate connection between the provision and the objective.

• 11. The Bill proposes a blanket voting ban on any convicted prisoner who is incarcerated on election day regardless of their offence. The explanatory note to the Bill appears to suggest that anyone sentenced to any period of imprisonment is a serious offender. The objective of the Bill appears to be that a person convicted for serious crimes against the community should forfeit the right to vote as part of their punishment. I will assume, without expressing an opinion, that temporarily disenfranchising serious offenders as a part of their punishment would be a significant and important objective.

• 12. The objective of the Bill is not rationally linked to the blanket ban on prisoner voting. It is questionable that every person serving a sentence of imprisonment is necessarily a serious offender. People who are not serious offenders will be disenfranchised. Fine defaulters may be sentenced to imprisonment as an alternative sentence. I doubt that this group of people can be characterised as serious offenders such that they should forfeit their right to vote.

• 13. Under the Bill, the Electoral Act would continue to disqualify electors being detained for a period exceeding three years in a hospital or secure facility in the context of a criminal process. An example of this is where a person has been found by a Court on conviction to be mentally impaired and is detained under an order made by the Court for a period exceeding three years. If the mentally impaired person was detained for less than three years, the Bill would not disqualify the person from registering as an elector. The Bill would therefore introduce irrational inconsistencies in the law where mentally impaired prisoners detained in a hospital or secure facility for less than three years could vote while all prisoners serving sentences less than three years in prisons would be disenfranchised.

• 14. The blanket ban on prisoner voting is both under and over inclusive. It is under inclusive because a prisoner convicted of a serious violent offence who serves a two and a half year sentence in prison between general elections will be able to vote. It is over inclusive because someone convicted and given a one — week sentence that coincided with a general election would be unable to vote. The provision does not impair the right to vote as minimally as reasonably possible as it disenfranchises in an irrational and irregular manner.

• 15. The disenfranchising provisions of this Bill will depend entirely on the date of sentencing, which bears no relationship either to the objective of the Bill or to the conduct of the prisoners whose voting rights are taken away. The irrational effects of the Bill also cause it to be disproportionate to its objective.

• 16. I conclude that the blanket disenfranchisement of prisoners appears to be inconsistent with s 12 of the Bill of Rights Act and that it cannot be justified under's 5 of that Act.

7 In addition to s 12(a), the following sections of the NZBORA are also relevant to this litigation:

9 Right not to be subjected to torture or cruel treatment

Everyone has the right not to...