| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA145/2016 [2017] NZCA 351 |
| BETWEEN | HINEMANU NGARONOA AND SANDRA WILDE |
| AND | THE ATTORNEY-GENERAL OF NEW ZEALAND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS THE ELECTORAL COMMISSION |
| CA287/2016 | |
| BETWEEN | ARTHUR WILLIAM TAYLOR |
| AND | THE ATTORNEY-GENERAL OF NEW ZEALAND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS THE ELECTORAL COMMISSION |
| Hearing: | 10-11 May 2017 |
Court: | Winkelmann, Asher and Brown JJ |
Counsel: | R K Francois for Appellants in CA145/2016 |
Judgment: | 17 August 2017 at 12 pm |
JUDGMENT OF THE COURT
AThe appeals are dismissed.
BThere is no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
Table of Contents
Para No.
Introduction
The scheme of the 1993 Act
The High Court judgment
The entrenchment issue
Inconsistency with the Bill of Rights
The issues on appeal
Does the interpretive approach in s 6 of the Bill of Rights apply to
s 268(1)(e)?
The application of the Treaty of Waitangi and Declaration of Independence
Does the Treaty of Waitangi apply for any interpretive purpose?
Does the Declaration of Independence apply for any interpretive purpose?
The meaning of s 268 in the light of its text and purpose
Argument on appeal
Approach to statutory interpretation
Textual analysis
Purpose cross-check
Legislative history
Discrimination
Introduction
The scheme of the legislation
Approach
Comparing groups
The submissions
Our analysis
Discrimination on the basis of political opinion
Conclusion on discrimination as a ground of appeal
Sections 9 and 23(5) of the Bill of Rights
Analysis
Conclusion on Bill of Rights claims
Result
Introduction
The ability for a person subject to a sentence of imprisonment to participate in the electoral process has long been a contentious and somewhat unsettled issue.[1] When the Electoral Act 1993 (the 1993 Act) was first enacted, the disqualification contained in s 80(1)(d) prohibited from voting those prisoners who had been sentenced to life imprisonment, preventive detention or imprisonment for a term of three years or more. However, in 2010 the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (the 2010 Act) was enacted, amending s 80(1)(d) to extend the prohibition on voting to all prisoners by disqualifying any person detained in a prison pursuant to a sentence of imprisonment from registering as an elector.
[1]See discussion in Andrew Geddis Electoral Law in New Zealand: Practice and Policy (2nd ed, LexisNexis, Wellington, 2014) at [4.3].
The imposition of this blanket exclusion by the 2010 Act has been held to be inconsistent with the right to vote affirmed and protected by s 12(a) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), an inconsistency which could not be demonstrably justified under s 5.[2] A declaration was made in the High Court to that effect.[3] An appeal by the Attorney-General to…
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- AGLC
- Ngaronoa v Attorney-General [2017] NZCA 351
- Case
- [2017] NZCA 351
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the appellants had standing to challenge the validity of the 2010 Act, whether the appellants were disqualified from registration as electors, and whether the 2010 Act was inconsistent with the Bill of Rights or invalid because it was not passed by a 75 per cent super-majority. The court also needed to consider whether the doctrine of implied repeal applied to the 2010 Act.
The court found that the appellants had standing to challenge the validity of the 2010 Act as they were directly affected by it. However, the court held that the appellants were disqualified from registration as electors under s 80 of the 1993 Act, which provides that certain prisoners are disqualified from registration. The court rejected the appellants' argument that s 268(1)(e) of the 1993 Act reserved the entire s 74, which sets out the prerequisites for registration, and therefore required the 2010 Act to be passed by a 75 per cent super-majority. The court held that s 268(1)(e) only referred to the adult prerequisite in s 74(1)(a), and not to the disqualifications from registration in s 80. The court also held that the 2010 Act was not inconsistent with the Bill of Rights.
The court dismissed the appeal and held that the 2010 Act was valid and enforceable. The court found that the appellants were disqualified from registration as electors and therefore could not vote or qualify as a candidate for election as a Member of Parliament. The court held that the 2010 Act was not inconsistent with the Bill of Rights and that it was validly enacted. The court rejected the appellants' argument that the doctrine of implied repeal applied to the 2010 Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
A person who is disqualified from registering as an elector therefore cannot vote or qualify as a candidate for election as a Member of Parliament. Section 80 of the 1993 Act sets out those that are disqualified for registration as electors. Relevantly for present purposes, it provides:80 Disqualification for registration (1) The following persons are disqualified for registration as electors:…(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:… When a person is disqualified under s 80, their name must be removed from the roll by the Electoral Commission.[15] Thus, while part of the appellants’ challenge is premised on the impact on the right to vote under s 12(a) of the Bill of Rights Act, what has actually been withdrawn from the appellants is their ability to register as an elector and have their name on the electoral roll. The practical effect on the appellants, however, is the same.[15]Section 98(1)(f). Some aspects of the electoral system are considered to be of such fundamental importance that they should not be subject to political whim or partisan attitudes. These provisions are said to be “entrenched” or “reserved”, in that they may only be repealed or amended by a 75 per cent “super-majority” of all members of the House of Representatives, rather than a simple majority.[16] This restriction applies to both direct repeal or amendment and implied repeal through enacting later inconsistent legislation.[17] The reserved provisions are set out in s 268, which provides:[16]Section 268(2). A reserved provision may also be repealed or amended if carried by a majority of the valid votes cast at a poll of the electors of the General and Māori electoral districts (a national referendum).[17]The doctrine of implied repeal provides that if two provisions are inconsistent with one another so that the two cannot stand together, the later enactment will prevail: see Kutner v Phillips [1891] 2 QB 267 at 272. It is s 268(1)(e) that is of interest in these appeals. The nub of the appellants’ argument on the entrenchment issue is that: first, s 268(1)(e) refers to and thus reserves or entrenches s 74 in its entirety, not simply the adult prerequisite; and, secondly, because s 74 is stated to be subject to other provisions of the 1993 Act, s 268(1)(e) thereby refers to and indirectly entrenches the disqualifications from registration in s 80. It was therefore required to be passed by a 75 per cent super‑majority. As the 2010 Act was not enacted by a 75 per cent super-majority, on the appellants’ argument the 2010 Act was invalidly enacted and, they contend, is therefore unenforceable. In the judgment under appeal,[18] Fogarty J commenced his analysis by putting to one side several political propositions advanced, along with arguments that misconceived the scope of judicial review of administrative action. He identified two justiciable arguments on the pleadings, namely the entrenchment issue and the allegation of inconsistency with the various provisions of the Bill of Rights.[19][18]Taylor v Attorney-General [2016] NZHC 355, [2016] 3 NZLR 111 [High Court judgment].[19]At [26].