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Taylor v Attorney-General

Taylor v Attorney-General

Case [2016] NZHC 355 4 March 2016

Constitutional Validity

Separation of Powers

Statutory Interpretation

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2101 [2015] NZHC 355

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

Hearing: 27-29 October 2015

Counsel:

RK Francois for Applicants
PT Rishworth QC, DJ Perkins and EJ Devine for Respondents

Judgment:

4 March 2016

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 4 March 2016 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

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…

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 Taylor v Attorney-General

Details

AGLC: Taylor v Attorney-General [2016] NZHC 355
Case: [2016] NZHC 355
Decision Date: 4 March 2016

CaseChat Overview and Summary

The applicants, a group of prisoners, sought a declaration that the 2010 Electoral (Disqualification of Sentenced Prisoners) Amendment Act was invalid because it was passed by a simple majority rather than the required 75 per cent majority. They also sought a declaration that the Act was inconsistent with the New Zealand Bill of Rights Act 1990 (NZBORA). The applicants argued that the Act's blanket disenfranchisement of prisoners violated their rights under s 12 of the NZBORA, which guarantees the right to vote. The applicants further argued that the Act was inconsistent with other provisions of the NZBORA, including the right not to be subjected to torture or cruel treatment (s 9), freedom from discrimination (s 19), and the right to be treated with humanity and respect for the inherent dignity of the person (s 23(5)). The applicants also claimed that the Act breached the Treaty of Waitangi and the United Nations Declaration on the Rights of Indigenous Peoples. The court found that the applicants had standing to bring the claims. However, the court held that the 2010 Act was validly enacted, as the relevant sections of the Electoral Act 1993 only required a 75 per cent majority to amend the minimum voting age of 18 years, not the entire section on the qualifications of electors. The court further held that the Act was not inconsistent with the NZBORA, as the blanket disenfranchisement of prisoners was a reasonable limit on the right to vote. The court also held that the Act did not breach the Treaty of Waitangi or the United Nations Declaration on the Rights of Indigenous Peoples, as these instruments were not part of the law of New Zealand unless enacted by Parliament. The applicants' claims were dismissed, and costs were reserved.

Orders