Hinemanu Ngaronoa and Others v Attorney-General and Others

• Jurisdiction: New Zealand
• Judge: William Young,Glazebrook,O'Regan,Ellen France JJ,Ellen France J,Elias CJ
• Judgment Date: 14 December 2018
• Neutral Citation: [2018] NZSC 123
• Docket Number: SC 102/2017
• Court: Supreme Court
• Date: 14 December 2018

Between

Hinemanu Ngaronoa, Sandra Wilde and Arthur William Taylor

Appellants

and

Attorney-General

First Respondent

Chief Executive of the Department of Corrections

Second Respondent

Electoral Commission

Third Respondent

[2018] NZSC 123

Court:

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

SC 102/2017

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Counsel:

R K Francois for Appellants Ngaronoa and Wilde

F M R Cooke QC, P A Joseph and E M Gattey for Appellant Taylor

U R Jagose QC, P T Rishworth QC and D J Perkins for First Respondent

• A The appeal is dismissed.

• B There is no order for costs.

JUDGMENT OF THE COURT

REASONS

	Para No.
William Young, Glazebrook, O'Regan and Ellen France JJ	[1]
Elias CJ	[72]

William Young, Glazebrook, O'Regan AND Ellen France JJ

(Given by Ellen France J)

Table of Contents

	Para No.
Introduction	[1]
The statutory scheme	[5]
The Bill of Rights	[6]
The Electoral Act 1993	[8]
The judgments in the Courts below	[23]
The approach of the parties	[28]
The interpretation of s 268(1)(e)	[35]
The statutory language of s 268(1)	[36]
The legislative history	[49]
The purpose of entrenchment	[59]
Does the Bill of Rights mandate a different interpretation?	[65]
Conclusion	[70]
Costs	[71]

Introduction

1 Section 268 of the Electoral Act 1993 (the Act) provides that a number of the other provisions in the Act may only be amended or repealed if passed by a majority of 75 per cent of members of the House of Representatives or carried by a majority of electors at a referendum. The provisions protected or entrenched in this way are described as the “reserved provisions”. 1 The issue before us is what is meant by the description of the reserved provisions in s 268(1)(e), namely:

section 74, and the definition of the term adult in section 3(1), and section 60(f), so far as those provisions prescribe 18 years as the minimum age for persons qualified to be registered as electors or to vote:

2 Section 74 sets out the qualifications for registration as an elector and as an electoral candidate. Broadly, every adult person is qualified to be registered if he or

she is a New Zealand citizen or a permanent resident and meets various residential requirements. Section 3(1) defines an adult as a person of or over the age of 18 years. Section 60(f) deals with the ability of a member of the New Zealand Defence Force outside New Zealand to vote, relevantly, if he or she is of or over the age of 18 years on polling day

3 The present question about the meaning of s 268(1)(e) arises out of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (the 2010 Amendment). The effect of the 2010 Amendment is that all persons sentenced to a term of imprisonment after the commencement of that Act are disqualified for registration as electors and so unable to vote. The position prior to the 2010 Amendment was that those detained in a penal institution under sentences of life imprisonment, preventive detention or a term of imprisonment of three years or more were disqualified from voting. 2

4 The appellants, who are prisoners, say that the 2010 Amendment affected s 74 of the 1993 Act so as to engage the requirement in 268(2) that it be passed by a majority of 75 per cent of members of the House of Representatives (referred to as a supermajority to distinguish it from a majority). They brought proceedings contending that the 2010 Amendment was invalid because it was passed by an ordinary majority. 3 The High Court dismissed an application for interim orders relating to the appellants' voting rights in respect of the 2014 general election. 4 The appellants were subsequently unsuccessful in their claims for declaratory relief in the High Court 5 and in the Court of Appeal. 6 Both Courts concluded that s 268(1)(e) protects only the minimum voting age, that is, 18 years. The appellants appeal with leave to this Court. 7

As the appeal turns on the interpretation of the statute, it is helpful to begin with the statutory scheme

The statutory scheme

5 The key provisions are found in the New Zealand Bill of Rights Act 1990 (the Bill of Rights) and the Electoral Act 1993. The latter statute also incorporates a reference to the Constitution Act 1986.

The Bill of Rights

6 Section 12 of the Bill of Rights protects the right to vote. The section is in the following terms:

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; and

• (b) is qualified for membership of the House of Representatives.

7 Section 12 is to be construed in light of the purpose of the Bill of Rights which includes protecting and promoting “human rights and fundamental freedoms in New Zealand” as well as affirming “New Zealand's commitment to the International Covenant on Civil and Political Rights [ICCPR]”. 8 In addition, s 6 of the Bill of Rights provides that wherever “an enactment can be given” a rights-consistent meaning, “that meaning shall be preferred to any other meaning”.

The Electoral Act 1993

8 The Act was enacted “to reform the electoral system and to provide, in particular,” if carried by the referendum held under the Electoral Referendum Act 1993: 9

• (a) for the introduction of the mixed member proportional system of representation in relation to the House of Representatives:

• (b) for the establishment of an Electoral Commission:

• (c) for the repeal of the Electoral Act 1956

9 The Act deals with all of the aspects of the electoral system including the establishment of the Electoral Commission, the House of Representatives, the Representation Commission, the registration of political parties, the qualification and registration of electors, and the running of elections.

10 Registration as an elector is a prerequisite to both voting and standing as a candidate for election as a member of Parliament. As noted above, s 74(1) provides that, subject to the provisions of the Act, adult New Zealand citizens or permanent residents can register as an elector of an electoral district. 10 A person who is qualified to register as an elector of an electoral district is required to register as an elector of an electoral district. 11 A person who is Maori 12 may register either as an elector of a Maori electoral district or as an elector of a General electoral district but must choose one or the other of these options. 13

11 Generally, the effect of s 60 of the Act is that only a person whose name lawfully appears on the roll and is qualified to be registered as an elector may cast a vote at an election. 14 Only those registered as electors are qualified to be a candidate

and to be elected as a member of Parliament either for that electoral district or as a list candidate. 15

12 If a person is disqualified from registering as an elector, that person cannot vote or qualify as a candidate for election as a member of Parliament. 16 Section 80 of the Act describes those who are disqualified as electors. The persons disqualified for registration are in four broad groups: a New Zealand citizen or permanent resident who is outside New Zealand and has not been in New Zealand within a stated period; 17 persons detained in hospitals under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or in a secure facility under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 to whom certain conditions apply; 18 persons whose names are on the Corrupt Practices List for any district; 19 and prisoners. 20 As to the latter, s 80(1)(d) disqualifies:

(d) a person who is detained in a prison pursuant to a sentence of imprisonment imposed after the commencement of the [2010 Amendment].

13 Against this background, reference can be made to the entrenchment provision, s 268. Section 268 is in the following terms:

268 Restriction on amendment or repeal of certain provisions

• (1) This section applies to the following provisions (hereinafter referred to as reserved provisions), namely,—

  • (a) section 17(1) of the Constitution Act 1986, relating to the term of Parliament:

  • (b) section 28, relating to the Representation Commission:

  • (c) section 35, and the definition of the term General electoral population in section 3(1), relating to the division of New Zealand into electoral districts after each census:

  • (d) section 36, relating to the allowance for the adjustment of the quota:

  • (e) section 74, and the definition of the term adult in section 3(1), and section 60(f), so far as those provisions prescribe 18 years as the minimum age for persons qualified to be registered as electors or to vote:

  • (f) section 168, relating to the method of voting.

• (2) No reserved provision shall be repealed or amended unless the proposal for the amendment or repeal—

  • (a) is passed by a majority of 75% of all the members of the House of Representatives; or

  • (b) has been carried by a majority of the valid votes cast at a poll of the electors of the General and Maori electoral districts:

  provided that this section shall not apply to the repeal of any reserved provision by a consolidating Act in which that provision is re-enacted without amendment and this section is re-enacted without amendment so as to apply to that provision as re-enacted.

14 Two initial observations can be made about s 268. First, it provides for what are termed “manner and form” restrictions, that is, limits on the procedure or process to be adopted by Parliament if Parliament wishes to amend or repeal the reserved provisions. 21 Second, s 268 is not itself described as a reserved provision. This form of protection is...