For a Court ready (fee required) version please follow this link
IN THE COURT OF APPEAL OF NEW ZEALAND
CA470/2015 [2017] NZCA 215
BETWEEN
THE ATTORNEY-GENERAL Appellant
AND
ARTHUR WILLIAM TAYLOR First Respondent
HINEMANU NGARONOA, SANDRA WILDE, KIRSTY OLIVIA FENSOM AND CLAIRE THRUPP Second to Fifth Respondents
Hearing:
26 and 27 October 2016
Court:
Kós P, Randerson, Wild, French and Miller JJ
Counsel:
P T Rishworth QC, D J Perkins and E J Devine for Appellant D A Ewen for First Respondent R K Francois for Second to Fifth Respondents A S Butler and E M Watt for Human Rights Commission, intervening with leave V E Casey QC for the Speaker, intervening with leave
Judgment:
26 May 2017 at 10.00 am
Recalled
and Reissued:
16 June 2017 at 2.00 pm
Effective date
of Judgment:
26 May 2017
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellant must pay the second to fifth respondents’ costs for a complex appeal on a Band A basis with usual disbursements.
Introduction [1] Terminology [6] The 2010 Act’s impact upon the right to vote [8] The respondents [13] The High Court’s judgment [14] The Attorney-General’s case on appeal [29] Jurisdiction and restraint distinguished [40] The common law jurisdiction of the higher courts [43]
Jurisdiction [44] Restraint [68] Summary [77]
Jurisdiction under the Bill of Rights [78]
The Bill of Rights itself [79] The Bill of Rights and the ICCPR [86] The case law [92] Section 92J of the Human Rights Act 1993 [106] Summary [108]
Overall conclusion on jurisdiction [109] Parliamentary privilege and the s 7 report [110]
The Speaker’s intervention [110] Parliamentary privilege [113] What parliamentary materials may be referred to in an incompatibility proceeding? [122] The Speaker’s criticisms of the High Court’s use of the s 7 report [136] No breach of privilege in use of s 7 report [140] Reference to support in the House irrelevant but not done to question proceedings [144] Summary and conclusions [146]
The remedial declaration of inconsistency [147]
Why go beyond a Hansen indication? [149] Mootness [163] Standing [165] Process [167] Remedy necessarily discretionary [168] Lesser remedies not precluded [173]
Remedy in this case [175]
The High Court’s conclusions [175] The case of Mr Taylor [176] The case of Mss Ngaronoa, Wilde, Fensom and Thrupp [178]
Result [187] Costs [190]
Introduction
In December 2010 Parliament amended the Electoral Act 1993, extending to all prisoners a prohibition on voting that was formerly restricted to prisoners sentenced to three or more years’ imprisonment.
The respondents, five prisoners, brought a proceeding in the High Court seeking a declaration that the amending legislation,[1] which we will call the 2010 Act, is inconsistent with the right to vote affirmed and protected by the New Zealand Bill of Rights Act 1990. Section 12(a) of the Bill of Rights, as we will call it, provides:
12 Electoral rights
Every New Zealand citizen who is of or over the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Attorney-General v Taylor
Sign in free to access the full text
Details
AGLC
Attorney-General v Taylor [2017] NZCA 215
Case
[2017] NZCA 215
Decision Date
CaseChat Overview and Summary
The case of Attorney-General v Taylor involves a dispute concerning the admissibility of evidence derived from parliamentary proceedings in litigation. The matter was heard in the High Court of Australia. The central issue was whether the prohibitions under section 11 of the Parliamentary Privilege Act preclude the use of parliamentary proceedings in evidence in court when determining whether a law is compatible with a right protected by the Bill of Rights 1692.
The legal questions before the court included whether the prohibitions in section 11 extend to the use of parliamentary proceedings in the context of determining the compatibility of legislation with protected rights. Additionally, the court had to consider whether the use of parliamentary proceedings in such cases constitutes a breach of the privilege outlined in the Act, or if it falls within permissible uses, such as proving what was said and done in Parliament or assisting in interpreting legislation.
The court examined the purpose of section 11 and its exceptions, noting that the privilege is intended to protect the integrity of parliamentary processes rather than to shield Parliament from scrutiny in certain contexts. The court held that the use of parliamentary proceedings to determine the compatibility of legislation with protected rights does not infringe upon the privilege. Instead, it found that such use aligns with the purpose of ensuring that legislation is consistent with fundamental rights, and that it does not involve questioning the truth, motive, or credibility of parliamentary proceedings. The court emphasised that determining compatibility involves interpreting legislation and understanding the context in which it was passed, which is consistent with the permissible uses of parliamentary materials.
The court's decision clarified that the prohibitions in section 11 do not apply to the use of parliamentary proceedings in compatibility cases, provided that such use does not involve questioning the truth, motive, or credibility of the proceedings. The court's ruling ensures that courts can adequately interpret legislation and assess its compatibility with protected rights, without breaching parliamentary privilege.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Section 11 prohibits the offering or use in litigation of evidence or statements concerning proceedings in Parliament, but only where such evidence, etc has the effect or purpose of doing certain things: questioning or establishing the truth, credibility, motive, intention or good faith of anything forming part of those Parliamentary proceedings, or of any person; drawing inferences or conclusions; proving or disproving facts necessary or incidental to liability; or resolving any matter or supporting or resisting any judgment or order:11 Facts, liability, and judgments or ordersIn proceedings in a court or tribunal, evidence must not be offered or received, and questions must not be asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of, all or any of the following:(a)questioning or relying on the truth, motive, intention, or good faith of anything forming part of those proceedings in Parliament:(b)otherwise questioning or establishing the credibility, motive, intention, or good faith of any person:(c)drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament:(d)proving or disproving, or tending to prove or disprove, any fact necessary for, or incidental to, establishing any liability:(e)resolving any matter, or supporting or resisting any judgment, order, remedy, or relief, arising or sought in the court or tribunal proceedings. There are some longstanding uses to which proceedings in the House may be put in court proceedings without breaching privilege. Each is reflected in other provisions of the Parliamentary Privilege Act. These are not exceptions to s 11 but rather declarations that it does not apply to the specified uses. The first such use is to prove what was said and done in Parliament, as a matter of historical record.[158] This may be necessary for a number of purposes, including those mentioned in [54] and [55] above, in which we explain that Courts may scrutinise legislation to ensure that it was lawfully passed. The second use is to assist in interpreting legislation. As the House of Lords explained in Pepper (Inspector of Taxes) v Hart, to refer to Hansard or other parliamentary materials to ascertain the meaning of legislation is not to “question” parliamentary proceedings.[159] On the contrary, courts refer to parliamentary materials the better to give effect to Parliament’s wishes.[160] This principle is reflected in s 13 of the Act, which authorises the use of certain parliamentary materials for the purpose of ascertaining the meaning of an enactment. The third and related use, also encompassed by s 13, which permits use of parliamentary materials to ascertain “the meaning that can be given to” an enactment, is to determine under ss 4–6 of the Bill of Rights whether legislation limits a protected right or whether any such limitation is justified. Ms Casey submitted that we should adopt what she characterised as the Hansen approach to evidence in incompatibility proceedings. That is, she submitted, legislative history is admissible but as a general proposition parliamentary proceedings are not. She instanced speeches in the House, select committee reports or submissions made to select committees, all of which come within the definition of “proceedings in Parliament” in s 10 of the Parliamentary Privilege Act. She recognised that parliamentary proceedings may include policy material of relevance in litigation, but submitted that it does not follow that a court need refer to such proceedings. Rather, the policy material itself can be put before the court for it to make its own assessment. She submitted that to rely on parliamentary proceedings is necessarily to consider whether the views expressed in them were correct.