Taylor v AG

• Jurisdiction: New Zealand
• Judge: Fogarty J
• Judgment Date: 04 March 2016
• Neutral Citation: [2015] NZHC 355
• Docket Number: CIV-2014-404-2101
• Court: High Court
• Date: 04 March 2016

Between

Arthur William Taylor, Joel Twain McVay, Rhys Warren, Edward Vincent Rollo

Prisoner of Auckland (and Kaikohe — Fourth Applicant) First, Second, Third and Fourth Applicants

Hinemanu Ngaronoa, Sandra Wilde, Maritta Matthews

Prisoners of Christchurch Fifth, Sixth and Seventh Applicants

and

The Attorney-General of New Zealand

Public Servant of Wellington

First Respondent

The Chief Executive of the Department of Corrections

Second Respondent

The Electoral Commission

Third Respondent

[2015] NZHC 355

CIV-2014-404-2101

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Application for a declaration that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 was unlawful on the grounds it was enacted by a simple majority whereas the Electoral Act 1993 (“EA”) required a majority of 75 per cent to disenfranchise all prisoners — the applicants were all serving prisoners — whether s6 New Zealand Bill of Rights Act 1990 (“NZBORA”) applied (interpretation consistent with NZBORA to be preferred) — whether the Amendment Act breached s9 NZBORA (right not to be subjected to torture or cruel treatment), s12 NZBORA (electoral rights), s19 NZBORA (freedom from discrimination) and s23 NZBORA (rights of persons arrested or detained) — whether the loss of the right to vote for all Maori prisoners breached s19 NZBORA (freedom from discrimination) — whether the Amendment Act was not a justified limitation under s5 NZBORA (justified limitations) — whether the Amendment Act was invalid on the basis that s268(1)(e) EA required any change to s74 EA (enabling electoral registration of adults) to be passed by at least a 75% majority.

Counsel:

RK Francois for Applicants

PT Rishworth QC, DJ Perkins and EJ Devine for Respondents

JUDGMENT OF Fogarty J

TABLE OF CONTENTS

The parties	1
Introduction to the principal issue	2
Was Section 4 of the 2010 Act lawfully enacted – the principal issue [10] Introduction to review arguments	17
The applicants' standing to sue	28
The litigation to date	33
The applicants' opening statement	39
New Zealand's Constitution	43
New Zealand's constitutional legitamacy	48
Legislative history of the Electoral Acts —- shifting policies on prisoners' right to vote	59
The purpose of this litigation	69
The validity of the 2010 Amendment —- did it require a 75 per cent majority?	70
Is this a New Zealand Bill of Rights issue?	71
Hansen reasoning	79
The applicants' interpretation of s 268(1)(e)	87
This Court's analysis and resolution of the interpretation issue	97
Conclusion	110
Subsidiary issues	111
The Court of Appeal's understanding of discrimination	136
Treaty of Waitangi	153
United Nations Declaration on the Rights of Indigenous Peoples	154
Result	156

The parties

1 The applicants are all prisoners in the legal custody of the Department of Corrections. The first respondent, the Attorney-General is sued by reason of being responsible for exercising all his powers, duties and functions subject to the New Zealand Bill of Rights Act 1990 (NZBORA). The second respondent is sued on the basis that he is responsible for ensuring that the Corrections system operates in accordance with all applicable laws. The third respondent is the Electoral Commission, sued on the basis that it is responsible for facilitating participation in a democracy, exercising powers under the Electoral Act whose acts are subject to NZBORA, and responsible for ensuring the Maori electoral system operates in accordance with all applicable electoral laws.

Introduction to the principal issue

2 This case is principally about whether all prisoners have been lawfully barred from voting in parliamentary elections. Prior to 2010, certain prisoners were disqualified from registering to vote by s 80(1)(d) of the Electoral Act 1993 (the Act) which provided:

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:

3 Then, in 2010, Parliament enacted the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (2010 Act). The Bill was passed by a simple majority. Section 4 of the 2010 Act provides:

4 Disqualifications for registration

Section 80(1) is amended by repealing paragraph (d) and substituting the following paragraph.

“(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:”

4 Before s 80(1)(d) was amended, the Attorney-General reported to Parliament 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 the Act”.

5 Section 12 of NZBORA 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; and

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

6 In a judgment delivered on 24 July 2015, this Court declared, consistent with the report of the Attorney-General, as follows: 1

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.

7 Section 5 provides:

5 Justified limitations

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

8 That judgment is under appeal. I am advised that is not because the Crown disputes the inconsistency. Rather, the appeal is against the proposition that the High Court has the jurisdiction to make such a declaration of inconsistency.

9 Accordingly, this litigation proceeds on the footing that s 4 of the 2010 Act is in conflict with s 12 of the NZBORA, and that the conflict cannot be justified under s 5 as placing reasonable limits on the right to vote in s 12. Putting it more concisely: a law preventing any prisoner from voting, however short the sentence, is not a reasonable limit on the otherwise universal right to vote.

Was Section 4 of the 2010 Act lawfully enacted – the principal issue

10 In this case, the applicants argue that the 2010 Act was enacted unlawfully by a bare majority because s 268(1)(e) of the Electoral Act 1993 requires a majority of 75 per cent. The applicants seek a declaration that this statute is invalid, unlawful and of no effect. Such a claim for relief is unprecedented.

11 Section 268 provides:

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 of this Act, relating to the Representation Commission:

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

  • (d) Section 36 of this Act, relating to the allowance for the adjustment of the quota:

  • (e) Section 74 of this Act, and the definition of the term “adult” in section 3(1) of this Act, and section 60(f) of this Act, 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 of this Act, 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 percent 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.

  (Emphasis added.)

12 The reader will note that s 268 does not anywhere refer to s 80, let alone s 80(1)(d). But it does so indirectly because s 74, referred to in s 268(1)(e), is the section that sets out the qualifications of electors, and begins “Subject to the provisions of the Act”, which qualification cross refers to s 80 which is entitled “Disqualifications for Registration”.

13 Section 74 of the Act provides:

74 Qualification of electors

• (1) Subject to the provisions of this Act, every adult person is qualified to be registered as an elector of an electoral district if—

  • (a) That person is—

    • (i) A New Zealand citizen; or

    • (ii) A permanent resident of New Zealand; and

  • (b) That person has at some time resided continuously in New Zealand for a period of not less than one year; and

  • (c) That electoral district—

    • (i) Is the last in which that person has continuously resided for a period equalling or exceeding one month; or

    • (ii) Where that person has...