BETWEEN
ARTHUR WILLIAM TAYLOR First Applicant

HINEMANU NGARONOA, SANDRA WILDE, KIRSTY OLIVIA FENSOM and 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

Hearing: 10 April 2015

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

Judgment:

24 July 2015

JUDGMENT OF HEATH J

This judgment was delivered by me on 24 July 2015 at 12.00pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Warren Simpson, Auckland Crown Law Office, Wellington Counsel:
R K Francois, Auckland
Copy to:
A W Taylor (Plaintiff)

TAYLOR v ATTORNEY-GENERAL OF NEW ZEALAND [2015] NZHC 1706 [24 July 2015]

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

1      See the Long Title to the New Zealand Bill of Rights Act 1990. See also para [5] below.
2      Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010; see paras [10]–[15]
below.
3      See para [10] below.

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…

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 [2015] NZHC 1706
Case: [2015] NZHC 1706
Decision Date: 24 July 2015

CaseChat Overview and Summary

The Court was asked to determine if the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, which bars all prisoners serving sentences of imprisonment from voting in a General Election, is inconsistent with s 12(a) of the New Zealand Bill of Rights Act 1990, which affirms the right of every New Zealand citizen over the age of 18 to vote in periodic elections. The Court found that the legislation is inconsistent with the right to vote guaranteed by s 12(a) of the Bill of Rights and cannot be justified under s 5 of the Bill of Rights. The Court held that there is jurisdiction to make a declaration of inconsistency, even in the absence of a live controversy between the parties. The Court exercised that jurisdiction, finding that the blanket ban on prisoner voting is inconsistent with the right to vote affirmed by s 12(a) of the Bill of Rights and cannot be justified under s 5 of that Act. The Court also found that the application of the Disqualification Act to those who are sentenced to home detention, as opposed to imprisonment, is inconsistent with the right to vote.

Orders