Taylor and Others v The Attorney-General of NZ

• Jurisdiction: New Zealand
• Judge: Ellis J
• Judgment Date: 12 September 2014
• Neutral Citation: [2014] NZHC 2225
• Docket Number: CIV-2014-404-002101
• Court: High Court
• Date: 12 September 2014

Under The Judicature Amendment Act 1972, Part 30 of the High Court Rules, the New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908 and the common law

In the Matter of an action for judicial review and declarations

Between

Arthur William Taylor, Joes Twain McVay, Rhys Warren

First, Second and Third Applicants

Hinemanu Ngaronoa, Sandra Wilde, Maritta Matthews

Fourth, Fifth and Sixth Applicants

and

The Attorney-General of New Zealand

First Respondent

The Chief Executive of the Department of Corrections

Second Respondent

The Electoral Commission

Third Respondent

[2014] NZHC 2225

CIV-2014-404-002101

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Application for interim orders “preserving” the applicants' right to vote in the 20 September 2014 general election — the applicants were all serving prisoners — the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (“Amendment Act”) amended s80(1)(d) Electoral Act 1993 (“EA”) (disqualifications for registration) and on its face disenfranchised all persons serving a sentence of imprisonment who were incarcerated on election day — before the amendment became law, the first respondent Attorney-General advised the House that it appeared to be inconsistent with the New Zealand Bill of Rights Act 1990 (“NZBORA”) — whether the amendment could be read consistently with s12 NZBORA (electoral rights), the Treaty of Waitangi and art 25 International Covenant on Civil and Political Rights “(ICCPR”) (every citizen has the right to vote without unreasonable restrictions) — whether the amendment was invalid because it was passed contrary to mandatory requirements that it be passed by 75 percent of the vote in the House or by a majority vote in the electoral districts.

Appearances:

First Applicant in person (via AVL)

R Francois for Second — Sixth Applicants

J Pike QC and P Gunn for the Respondents

JUDGMENT OF Ellis J

1 The applicants are all serving prisoners. They seek interim orders “preserving” their right to vote in the upcoming (20 September 2014) general election. Parliament has ostensibly taken away that right by its 2010 amendment to the Electoral Act 1993 (the Act).

Background: the right to vote, the Electoral Act and the 2010 amendment

2 Section 12 of the New Zealand Bill of Rights Act 1990 (NZBORA) provides that every New Zealand citizen who is 18 years or over has the right to vote. That section reflects and affirms art 25 of the International Covenant on Civil and Political Rights (ICCPR), 1 which recognises the right of all citizens to vote in genuine, periodic, elections without unreasonable restrictions. The commentary to art 25 acknowledges that laws suspending the right to vote held by those who are convicted of criminal offences on objective and reasonable grounds that are proportionate to the particular offence and sentence do not breach the Convention. And in broader terms, s 5 of NZBORA contemplates that all the rights affirmed by that Act are subject to such reasonable limits as may be prescribed by law and demonstrably justified in a free and democratic society.

3 Prior to 2010, s 80(1)(d) of the Act disqualified from registration as electors persons who were “detained in prison” under –

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

• (b) A sentence of preventive detention; or

• (c) A sentence of imprisonment for a term of 3 years or more. 2

4 That subsection was amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (the Amendment Act). 3 On its face the amendment

disenfranchises all persons who happen to be serving a sentence of imprisonment and are incarcerated on election day. 4

5 Before the amendment became law, the Attorney-General advised the House that it appeared to be inconsistent with NZBORA. In other words, the restrictions it placed on universal suffrage were not demonstrably justified in a free and democratic society. Parliament nonetheless enacted the amendment, albeit by a small majority.

6 There are many criticisms which have been levelled at the Amendment Act. Many of them were expressly noted by the Attorney-General in his s 7 report.

7 First, the explanatory note to the Bill indicated that its object was that a person convicted for “serious crimes against the community” should forfeit the right to vote as part of their punishment. But many people who are serving a sentence of imprisonment of less than three years would not be regarded as serious offenders. For example, a fine defaulter may be sentenced to a short term of imprisonment as an alternative sentence. It is difficult to contend that such a person should be characterised as having offended so seriously that he or she should forfeit their right to vote.

8 Similarly, short-term custodial sentences are sometimes imposed because other sentences, such as home or community detention, are not an option for a particular offender due to limited facilities and resources, mental health issues, the absence of family support, the absence of a suitable home detention address, or homelessness. It is argued that the mere existence of such adverse external circumstances ought not mean that the individual is to be treated as a serious offender who warrants disenfranchisement.

9 It is for reasons such as these that the Attorney said that the objective of the Act cannot be said to be rationally linked to its effect, namely the blanket ban on

prisoner voting. Such a rational link is necessary if the restriction placed on the s 12 right is to be justified

10 The absence of a rational link between object and effect is further underscored by the following:

• (a) a person sentenced to a month in prison just before election day is unable to vote while a person sentenced to one year's home detention (which is regarded as equivalent to a two year prison sentence) may vote unimpeded;

• (b) 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 and will receive no additional punishment at all. Someone serving a one-week sentence that coincided with a general election would still be unable to vote.

• (c) the disenfranchising provisions depend entirely on the date of sentencing, which bears no relationship either to the objective of the Amendment or to the conduct of the prisoners whose voting rights are taken away. It operates without regard to the nature of the offence committed, the length of the term imposed or the personal circumstances of the offender. It ignores differentiating culpability of offenders or whether the sentence was for a token number of days, a mandatory sentence or one of strict liability.

11 A separate criticism is that, unlike restrictions on freedom of movement and freedom from unreasonable search and seizure, which are necessary incidents of imprisonment, the right to vote is unrelated to the fact of incarceration. Deprivation of voting rights is thus said to be more analogous to removing the right of prisoners to freely manifest their religion while in prison. 5

12 Furthermore, the Act appears to introduce wider, irrational, inconsistencies in the law. For example mentally impaired prisoners who are detained in a hospital or a secure facility for less than three years are able to vote while all prisoners serving sentences of less than three years in prisons are disenfranchised.

13 The applicants in the present case also allege that the Amendment Act disproportionately disenfranchises Maori, who make up 51 per cent of the prison population. That was a consequence referred to on the occasion of the first reading of the Bill by the Hon. Hone Harawira, who said: 6

Kim Workman, director of Rethinking Crime and Punishment, said the provisions of the bill would affect the 90 percent of prisoners who would be out of jail in 2 years, and it would also actively disenfranchise the families and the communities that those inmates come from. Communities like Otara, Flaxmere, and Cannons Creek would stand to lose a significant number of their voters. It does not take very much consideration to realise that with Maori and Pasifika constituting the great majority of prison inmates, the Polynesian voice would be the voice that was silenced by this legislation.

14 It is also worthy of note that although comparable legislative measures have been enacted in other, cognate, jurisdictions, they have subsequently been held unconstitutional and struck down by the Courts. Thus the Supreme Court of Canada, the European Court of Human Rights, the Constitutional Court of South Africa, and the High Court of Australia have all held that disenfranchising all prisoners is an unjustifiable breach of individual rights. 7 For example, the Supreme Court of Canada did not consider such a limitation is justified by the social contract theory: 8

The social compact requires the citizen to obey the laws created by the democratic process. But it does not follow that failure to do so nullifies the citizen's continued membership in the self-governing polity. Indeed, the remedy of imprisonment for a term rather than permanent exile implies our acceptance of continued membership in the social order. Certain rights are justifiably limited for penal reasons, including aspects of the rights to liberty, security of the person, mobility, and security against search and seizure. But whether a right is justifiably limited cannot be determined by observing that an offender has, by his or her actions, withdrawn from the social compact.

Indeed, the right of the state to punish and the obligation of the criminal to accept punishment are tied to society's acceptance of the criminal as a person with rights and

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