Taylor v Attorney-General of New Zealand

• Jurisdiction: New Zealand
• Judge: Heath J
• Judgment Date: 24 July 2015
• Neutral Citation: [2015] NZHC 1706
• Docket Number: CIV-2013-404-4141
• Court: High Court
• Date: 24 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.

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

inconsistent with s 12(a) of the Bill of Rights. While one of them, Mr Taylor, is not subject to the present form of the prisoner voting ban, 4 no question about his standing has been raised. The remaining prisoners – Ms Ngaronoa, Ms Wilde, Ms Fensom and Ms Thrupp – come within its ambit. Accordingly, each of them has a genuine interest in obtaining declaratory relief from the Court

4 History is replete with stories about the struggle for equal and universal suffrage, whether on grounds of race, gender or otherwise. This case raises two questions of constitutional significance. The first is whether Parliament has passed legislation to deny serving prisoners the right to vote in a manner inconsistent with the Bill of Rights, and not justifiable in a free and democratic society. If so, the second is whether this Court should formally declare that to be so.

The purposes of the Bill of Rights

5 The purposes of the Bill of Rights are two-fold. The first is “to affirm, protect, and promote human rights and fundamental freedoms in New Zealand”. The second is “to affirm New Zealand's commitment” to the International Covenant. To achieve those goals, s 2 substantively affirms the rights and freedoms set out in the Bill of Rights, most of which mirror those contained in the International Covenant.

6 The initial proposal for a Bill of Rights was contained in a White Paper presented to the House of Representatives (the White Paper) by the then Minister of Justice, Hon Geoffrey Palmer MP. 5 The draft legislation set out in the White Paper was premised on the Bill of Rights operating as “supreme law”. If the Bill of Rights had been enacted in that form, the Courts would have had the power to declare legislation as “of no effect” for inconsistency with its terms. 6 Those draconian consequences were alleviated by a proposal that rights-limiting legislation should, nevertheless, be regarded as valid if “demonstrably justified in a free and democratic society”. 7 Although the Bill of Rights was not enacted as supreme law against which

the validity of other legislation was to be measured, the “justified limitation” provision was retained. 8

7 Although s 12(a) 9 of the Bill of Rights expresses the right to vote in unequivocal terms, Parliament has an undoubted power to make a policy decision to modify, or even nullify, its effect. 10 No Court is entitled to declare legislation invalid by reason only that it is inconsistent with any provision in the Bill of Rights. 11

8 The Attorney-General has a statutory duty to “bring to the attention of the House of Representatives any provision in [a] Bill that appears to be inconsistent with any of the rights and freedoms” set out in the Bill of Rights. 12 After the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill was introduced, the Attorney-General, Hon Christopher Finlayson QC, reported that it appeared to be inconsistent with s 12(a). 13

9 Notwithstanding his report, the present application is opposed by the Attorney, on both jurisdictional and discretionary grounds. There are good constitutional reasons for the differing stances that he has taken. A distinction must be drawn between the Attorney's roles in reporting to the Legislature (on the one hand) and representing the legislative branch of Government on a private citizen's application to the judicial branch to make a formal declaration of inconsistency (on the other).

The Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010

10 When the 1993 Act came into force, s 80(1)(d) (the original s 80(1)(d)) operated to bar from voting all persons who were detained in a penal institution under a sentence of imprisonment of three years or more. Following enactment of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (the

Disqualification Act), s 80(1)(d) was amended (the present s 80(1)(d)) so that all persons serving sentences of imprisonment imposed after 16 December 2010 were prohibited from voting in a General Election. Only the present s 80(1)(d) is in issue in this proceeding

11 The Electoral (Disqualification of Sentenced Prisoners) Amendment Bill was introduced into Parliament in late 2010. It was promoted by Mr Paul Quinn MP, as a Private Member's Bill. Mr Quinn's intention was to persuade Parliament to change the law, to prevent all serving prisoners from voting in a General Election.

12 After the Bill was introduced into the House of Representatives, the Attorney-General provided a report under s 7 of the Bill of Rights. Section 7 provides:

7 Attorney-General to report to Parliament where Bill appears to be inconsistent with Bill of Rights

Where any Bill is introduced into the House of Representatives, the Attorney-General shall,—

• (a) In the case of a Government Bill, on the introduction of that Bill; or

• (b) In any other case, as soon as practicable after the introduction of the Bill,—

bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

(emphasis added)

13 The Attorney expressed the view that the Bill appeared to be inconsistent with s 12(a). He considered that a “blanket ban on prisoner voting [was] both under and over inclusive”, with the consequence that the “disenfranchising provisions of [the] Bill will depend entirely on the date of sentencing, which bears no relationship either to the objective of the Bill or to the conduct of the prisoners whose voting rights are taken away”. Mr Finlayson opined that those “irrational effects” meant that the Bill would be “disproportionate to its objective”. As a result, he concluded “that the blanket disenfranchisement of prisoners appears to be inconsistent with s 12 … and … cannot be justified under s 5” of the Bill of Rights. 14

14 Unusually, the Bill was referred to the Law and Order Committee. Typically, the Justice and Electoral Committee is the select committee that considers proposed changes to electoral laws. When the Bill was reported back to the House, it was supported by two parties, New Zealand National and ACT New Zealand. The remaining parties – New Zealand Labour, the Green Party, the Maori Party, the Progressive Party and United Future – opposed enactment. Ultimately, it was passed into law by a majority of 63 votes to 58. 15

15 The transitional provision of...