Attorney-General v Arthur William Taylor

• Jurisdiction: New Zealand
• Judge: Glazebrook,Ellen France JJ,Ellen France J,Elias CJ,William Young,O'Regan JJ,O'Regan J
• Judgment Date: 09 November 2018
• Neutral Citation: [2018] NZSC 104
• Court: Supreme Court
• Docket Number: SC 65/2017

[2018] NZSC 104

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Court:

Elias CJ, William Young, Glazebrook, O'Regan and Ellen France JJ

SC 65/2017

Between

Attorney-General

Appellant

and

Arthur William Taylor

First Respondent

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

Second to Fifth Respondents

Counsel:

U R Jagose QC, D J Perkins and G M Taylor for the Appellant

First Respondent in person

R K Francois for the Second to Fifth Respondents

A S Butler, C J Curran and J S Hancock for the Human Rights Commission as Intervener

Bill of Rights, Criminal — jurisdiction of High Court to declare that legislation was inconsistent with the provisions of the New Zealand Bill of Rights Act 1990 (“NZBORA”) — prisoners right to vote — Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010

• A The appeal is dismissed.

• B The cross-appeal is allowed. Mr Taylor accordingly has standing.

• C Costs are reserved.

JUDGMENT OF THE COURT

REASONS

	Para No.
Glazebrook and Ellen France JJ	[1]
Elias CJ	[73]
William Young and O'Regan JJ	[122]

Glazebrook AND Ellen France JJ

(Given by Ellen France J)

Table of Contents

	Para No.
Introduction	[1]
Background	[6]
Prisoner voting	[7]
The approach in the Courts below	[13]
The statutory scheme	[20]
Does the High Court have power to make a declaration of inconsistency?	[25]
The submissions	[25]
The approach to date	[29]
Is the making of a declaration contemplated by the Bill of Rights?	[38]
Consistency with judicial function?	[52]
Mr Taylor's standing – the cross-appeal	[68]
The decision to grant a declaration in this case	[70]
Result	[71]

Introduction

1 The primary issue raised by this appeal is whether the High Court has the power to make a declaration that legislation is inconsistent with the provisions of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). The issue arises in the context of an amendment in 2010 to the Electoral Act 1993. The Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (the 2010 Amendment) extended the prohibition on voting to all prisoners. Prior to the 2010 Amendment, the prohibition was confined to prisoners sentenced to a term of imprisonment of three years or more.

2 It is accepted that the prohibition in the 2010 Amendment is inconsistent with the right to vote in s 12(a) of the Bill of Rights. Section 12 provides that:

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 The respondents, five prisoners, sought a declaration in the High Court that the 2010 Amendment was inconsistent with s 12(a). 1 An application to strike out the proceeding on the ground there was no jurisdiction to make a declaration was dismissed by Brown J. 2 The matter proceeded to trial after which Heath J in the High Court made a declaration that: 3

Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act.

4 The Attorney-General appealed to the Court of Appeal from this decision on the ground the Court had no jurisdiction to make the declaration. The Court of Appeal dismissed the appeal. 4 The Court did so on the basis there was a power to make a declaration and, with one qualification, considered it was not unreasonable to make a declaration in this case. The qualification was that the Court ruled that the first respondent, Mr Taylor, had no standing. That was because he was prevented from voting by the earlier legislation, not by the 2010 Amendment.

5 The Attorney-General appeals with leave to this Court. 5 Mr Taylor cross-appeals on the standing issue. The Human Rights Commission was given leave to appear as an intervener.

Background

6 Before discussing the approach taken in the Courts below, it is useful to say a little about the history of disenfranchisement of prisoners in New Zealand. 6 We essentially adopt the description of this aspect in the judgment of Heath J. 7

Prisoner voting

7 The first point of reference is the New Zealand Constitution Act 1852 (Imp) (the 1852 Act). 8 Under that Act, the franchise was restricted to males over 21 years of age who owned property. 9 Relevantly, for present purposes, s 8 of the 1852 Act provided that prisoners incarcerated for “any treason, felony, or infamous offence, within any part of Her Majesty's dominions” were prohibited from voting. The Qualification of Electors Act 1879 extended the prohibition for a period of 12 months after the prisoner's sentence was completed. 10

8 The scope of the prohibition changed under the Electoral Act 1905. 11 Section 29(1) of that Act removed the extension of the period of post-conviction disqualification but the class of offences to which the prohibition applied was widened. Prisoners sentenced to death or to a sentence of one or more years of imprisonment, amongst others, were added to the class of disenfranchised prisoners.

9 The Electoral Act 1956 imposed a complete ban on voting on those detained in a penal institution as a result of a conviction. 12

10 The position changed for a brief period with the Electoral Amendment Act 1975. 13 Section 18(2) of that Act removed the disenfranchisement of prisoners completely. That position remained only until 1977 when the prohibition on serving prisoners voting was re-introduced. 14

11 The situation altered again with the enactment of the 1993 Act. As originally enacted, s 80(1)(d) disqualified serving prisoners detained under a sentence of life imprisonment, preventive detention, or a term of imprisonment of three years or more. 15 The 2010 Amendment extended the prohibition to all prisoners. Under the current regime, only remand prisoners retain the right to vote. The Attorney-General, in his report to the House of Representatives under s 7 of the Bill of Rights, said that “the blanket disenfranchisement of prisoners appears to be inconsistent with s 12 of the Bill of Rights Act and … it cannot be justified under s 5 of that Act”. 16

12 Against this background the respondents, all serving prisoners, brought an action in the High Court seeking a declaration of inconsistency.

The approach in the Courts below

13 In the High Court, after a review of the authorities, Heath J said the “general principle” was that “where there has been a breach of the Bill of Rights there is a need for a Court to fashion public law remedies to respond to the wrong inherent in any breach of a fundamental right”. 17 There was no reason for a different position in

relation to the legislative branch. Heath J said that Parliament did not intend, in the Bill of Rights, “to exclude the ability of the Court to make a declaration of inconsistency”. 18

14 The Judge considered that the ability, since the enactment of s 92J of the Human Rights Act 1993, for the Human Rights Review Tribunal to make a declaration of inconsistency supported that view. 19 Finally, Heath J did not consider making a declaration would bring into question parliamentary processes in a way contrary to art 9 of the Bill of Rights 1688 (Imp).

15 Given the fundamental nature of the right involved, the right to vote, the Judge determined it was appropriate to make a declaration in this case.

16 The overall conclusion of the Court of Appeal was that the source of the higher courts' jurisdiction to make a declaration of inconsistency was “the common law jurisdiction of the higher courts to answer questions of law”. 20 The Court took the view that there was no constitutional bar to a court issuing a declaration of inconsistency nor any bar under the Bill of Rights. Indeed, the language and purpose of ss 2–6 of the Bill of Rights and the associated case law supported the existence of the power as did the ability to make a declaration of inconsistency conferred on the Human Rights Review Tribunal under the Human Rights Act. 21

17 Turning to the particulars of the present case, although no question of Mr Taylor's standing was raised by the Crown, the Court of Appeal concluded he had none. 22 The Court did so on the basis the challenge was confined to the 2010 Amendment. Mr Taylor had no interest in that because, in contrast to the other respondents, as a long-term prisoner he could not vote under the earlier legislation. Nor did the Court consider Mr Taylor could be treated as a representative plaintiff.

18 Finally, the Court determined that it was open to the High Court to make a declaration in this case and noted that it was “right to do so”. 23 The Court relied in this respect on the need to “convey the Court's firm opinion that the legislation needs reconsidering and to vindicate the right”. 24

19 For completeness, we add that the Court found there had been no breach of parliamentary privilege in the use made by Heath J of the report from the Attorney-General to the House of Representatives pursuant to s 7 of the Bill of Rights. 25 That aspect of the case is not in issue before us.

The statutory scheme

20 The key provisions of the Bill of Rights for present purposes are the long title, ss 2–7, and s 12(a) which is set out above. The long title provides that the purpose of the Bill of Rights is two-fold, namely:

• (a) to affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and

• (b) to affirm New Zealand's commitment to the International Covenant on Civil and Political Rights.

21 Section 2 confirms that the rights and freedoms in the...