Taylor v Attorney-General of New Zealand

JurisdictionNew Zealand
CourtHigh Court
JudgeHeath J
Judgment Date24 July 2015
Neutral Citation[2015] NZHC 1706
Docket NumberCIV-2013-404-4141
Date24 July 2015

[2015] NZHC 1706

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4141

BETWEEN
Arthur William Taylor
First Applicant
Hinemanu Ngaronoa
Sandra Wilde
Kirsty Olivia Fensom
Claire Thrupp
Second, Third, Fourth and Fifth Applicants
and
Attorney-General of New Zealand
First Respondent
Chief Executive of The Department of Corrections
Second Respondent
Counsel

A W Taylor, in person, First Applicant

R K Francois for Second, Third, Fourth and Fifth Applicants

D J Perkins and E J Devine for Respondents

Counsel

R K Francois, Auckland

Application for a formal declaration that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 was inconsistent with s12 New Zealand Bill of Rights Act 1990 (NZBORA) (electoral rights — very New Zealand citizen … has the right to vote) — amendment Act amended s80(1)(d) Electoral Act 1993 (“EA”(disqualifications for registration — a person … detained in a prison)) barring all prisoners incarcerated as a result of a sentence imposed after 16 December 2010 from voting in a General Election — Attorney-General said there was no jurisdiction to make a declaration in circumstances where there was no live issue between the parties as to the interpretation of a provision and where the declaration would be a stand — alone remedy — whether the amendment Act was inconsistent and could not be justified — whether the High Court had jurisdiction to make a declaration of inconsistency in a case where its interpretive function was not engaged and if yes, whether a declaration should be made.

The issues were: whether the amendment Act was inconsistent and could not be justified; whether the High Court had jurisdiction to make a declaration of inconsistency in a case where its interpretive function was not engaged; and if yes, whether a declaration should be made.

Held: The Disqualification Act breached s12(a) NZBORA and could not be justified under s5 NZBORA. There was also an inconsistency in the application of the Disqualification Act to those who were sentenced to home detention, as opposed to imprisonment. A person was not eligible to be sentenced to home detention unless they would otherwise have been sentenced to a term of imprisonment of two years or less. Whether the term of imprisonment that would prima facie be imposed was commuted to home detention depended on a judicial evaluation of a broad range of factors; not just the seriousness of the crime committed. The fact that a person had been sentenced to imprisonment did not necessarily demonstrate that their offending was more serious than someone sentenced to home detention.

There was no jurisdiction to make a declaration of inconsistency in the course of a criminal trial in either the District Court or the High Court.

While the view that the function of s5 should be limited to interpretation was based on the way in which s 4 was expressed, the broader role suggested for s5 in Moonen v Film and Literature Board of Review did not conflict with the policy underlying s4 (Other enactments not affected). Whether s5 NZBORA was viewed solely as an interpretive provision or as one which could also be used in determining whether to make a declaration of inconsistency, the Court was required to take into account quasi-political considerations, to determine whether an inconsistency was “demonstrably justified in a free and democratic society”. There was no conflict with s4 NZBORA (other enactments not affected) which stated in unequivocal terms that the Court could not declare a statute invalid or ineffective by reason only that a relevant provision was inconsistent with a right guaranteed or affirmed by the NZBORA.

The general principle was that where there had been a breach of the Bill of Rights there was a need for a Court to fashion public law remedies to respond to the wrong inherent in any breach of a fundamental right. Given the enactment of s5 NZBORA, Parliament's undoubted intention that (in appropriate cases) the Courts engage in the type of quasi-political analysis required by that section, and the narrow scope of the prohibitions placed on the Courts by s4 NZBORA, Parliament had not intended to exclude the ability of the Court to make a declaration of inconsistency.

There was jurisdiction for the Court to make a declaration of inconsistency Courts had to take care to respect the boundaries within which the three branches of Government operated, and the principle of comity that applied among them. The Court should not be fearful about making a formal declaration of inconsistency because of the possibility that such an order might be ignored. The judicial oath required the Judge to do right “without fear or favour”. The Judge was not making a political statement in an endeavour to persuade Parliament to change its mind. His or her function was firmly grounded in the obligation of the Court to declare the true legal position. Any political consequences of the decision could be debated in the court of public opinion, or in Parliament. The Court need not be more “hesitant” to grant a declaration in a case where the Attorney had made a s7 report and Parliament had chosen to enact regardless, because the Attorney and the Courts had different functions.

The next issues was whether the Court should exercise a declaratory jurisdiction when there was no live controversy between the parties and a declaration would be “stand-alone” relief. Although it was doubtful that jurisdiction existed to grant a declaration of inconsistency under the Declaratory Judgments Act 1908 (“DJA”), the circumstances in which the Court might exercise jurisdiction more generally under the DJA when faced with a moot or academic question as useful, by way of analogy, in determining whether a declaration should be made on a “stand-alone” basis. The Supreme Court had made it clear that, while a declaration under that DJA would not ordinarily be made in that situation, the High Court retained jurisdiction to make one. The question of whether a citizen's right to vote had been removed in a manner inconsistent with the Bill of Rights was a point of such constitutional importance that it justified the Court exercising a discretion to grant relief in the form of a declaration.

A declaration was justified because:

  • a) The inconsistency had arisen in the context of the most fundamental aspect of a democracy; namely, the right of all citizens to elect those who would govern on their behalf. Enactment of a statutory provision that was inconsistent with that fundamental right should be marked by a formal declaration of the High Court, rather than by an observation buried in its reasons for judgment.

  • b) Whether a declaration of inconsistency or an “indication” of inconsistency in reasons for judgment was provided, it was difficult to see how the making of a formal declaration of inconsistency could amount to a contravention of either art 9 Bill of Rights 1688 (freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament) or the principles of comity. In both situations, the Court was commenting on a consequence of a legislative act.

  • c) The functions of the A-G and the Court were different. The Court's role was to determine whether the legislation was in breach of NZBORA and, if so, whether any remedy should be granted.

  • d) The purpose of a formal declaration was to draw to the attention of the New Zealand public that Parliament had enacted legislation inconsistent with a fundamental right.

  • e) Parliament had accepted, by enacting s92J Human Rights Act 1993 (remedy for enactments in breach of Part 1A), that it did not regard a formal declaration as an illegitimate intrusion into parliamentary processes.

A formal declaration was given that the s80(1)(d) EA (as amended by the Disqualification Act was inconsistent with the right to vote affirmed and guaranteed in s12(a) NZBORA and could not be justified under s5 NZBORA.

JUDGMENT OF Heath J

Contents

The application

[1]

The purposes of the Bill of Rights

[5]

The Electoral (Disqualification of Sentenced Prisoners)

Amendment Act 2010

[10]

History of prisoner disenfranchisement legislation in New Zealand [16] The Attorney-General's report

[27]

Analysis

(a) Introductory comments

[30]

(b) The inconsistency

[32]

(c) Is there jurisdiction to make a declaration of inconsistency?

[36]

(d) Should a declaration be made?

[67]

Result

[79]

The application
1

Section 12 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) deals with electoral rights:

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.

2

A democracy is built around the idea that a state is governed by elected members of a legislative body. For that reason, the right to vote is arguably the most important civic right in a free and democratic society. Affirmation of the importance of that right is apparent from the terms in which both s 12(a) of the Bill of Rights and art 25(b) of the International Covenant on Civil and Political Rights (the International Covenant) are expressed. 1

3

As a result of an amendment made to the Electoral Act 1993 (the 1993 Act) in 2010, 2 all prisoners incarcerated as a result of a sentence imposed after 16 December 2010 are barred from voting in a General Election. 3 In this proceeding, five serving prisoners seek a formal declaration from this Court that the prohibition is

...

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4 cases
  • Attorney General v Taylor and Others
    • New Zealand
    • Supreme Court
    • 9 November 2018
    ...v Attorney-General [2017] NZSC 183. Judgment is reserved. 2 Taylor v Attorney-General [2014] NZHC 1630. 3 Taylor v Attorney-General [2015] NZHC 1706, [2015] 3 NZLR 791 [ Taylor (HC)] at 4 Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24 (Kós P, Randerson, Wild, French and Mille......
  • Make it 16 Inc. v Attorney-General
    • New Zealand
    • High Court
    • 7 October 2020
    ...NZSC 104, [2019] 1 NZLR 213. 4 At [53]. 5 At [56]. 6 At [100]. 7 Attorney-General v Taylor, above n 3. 8 Taylor v Attorney-General [2015] NZHC 1706, [2015] 3 NZLR 791 at 9 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [108], [110], [120] (per Tipping J); Child Poverty Action Group Inc v At......
  • Hinemanu Ngaronoa and Others v Attorney-General and Others
    • New Zealand
    • Supreme Court
    • 14 December 2018
    ...the right to vote in s 12 of the New Zealand Bill of Rights Act 1990. The High Court granted a declaration: Taylor v Attorney-General [2015] NZHC 1706, [2015] 3 NZLR 791; that decision was upheld by the Court of Appeal in Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24 and in t......
  • Zurich Australian Insurance Ltd v Mark Donald Withers
    • New Zealand
    • Court of Appeal
    • 16 December 2016
    ...... [2016] NZCA 618 IN THE COURT OF APPEAL OF NEW ZEALAND . Court: . Randerson, Harrison and Kós JJ . CA317/2015 . Between ......

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