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Taylor v Attorney-General

Taylor v Attorney-General

Case [2014] NZHC 2225 12 September 2014

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002101 [2014] NZHC 2225

UNDER
The Judicature Amendment Act 1972, Part

30 of the High Court Rules, the New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908 and the common law

IN THE MATTER

of an action for judicial review and declarations

BETWEEN

ARTHUR WILLIAM TAYLOR, JOES TWAIN MCVAY, RHYS WARREN First, Second and Third Applicants

HINEMANU NGARONOA, SANDRA WILDE, MARITTA MATTHEWS Fourth, Fifth and Sixth Applicants

AND

THE ATTORNEY-GENERAL OF NEW ZEALAND

First Respondent

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Second Respondent

THE ELECTORAL COMMISSION Third Respondent

Hearing: 10 September 2014

Appearances:

First Applicant in person (via AVL)
R Francois for Second - Sixth Applicants
J Pike QC and P Gunn for the Respondents

Judgment:

12 September 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Friday 12 September 2014 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

TAYLOR & ORS v THE ATTORNEY-GENERAL OF NZ [2014] NZHC 2225 [12 September 2014]

[1] The applicants are all serving prisoners. They seek interim orders “preserving” their right to vote in the upcoming (20 September 2014) general election. Parliament has ostensibly taken away that right by its 2010 amendment to the Electoral Act 1993 (the Act).

Background: the right to vote, the Electoral Act and the 2010 amendment

[2] Section 12 of the New Zealand Bill of Rights Act 1990 (NZBORA) provides that every New Zealand citizen who is 18 years or over has the right to vote. That section reflects and affirms art 25 of the International Covenant on Civil and Political Rights (ICCPR),1 which recognises the right of all citizens to vote in genuine, periodic, elections without unreasonable restrictions. The commentary to art 25 acknowledges that laws suspending the right to vote held by those who are
convicted of criminal offences on objective and reasonable grounds that are proportionate to the particular offence and sentence do not breach the Convention. And in broader terms, s 5 of NZBORA contemplates that all the rights affirmed by that Act are subject to such reasonable limits as may be prescribed by law and demonstrably justified in a free and democratic society.

[3] Prior to 2010, s 80(1)(d) of the Act disqualified from registration as electors persons who were “detained in prison” under –

(a) A sentence of imprisonment for life; or

(b) A sentence of preventive detention; or

(c) A sentence of imprisonment for a term of 3 years or more.2

[4] That subsection was amended by the Electoral (Disqualification of Sentenced

Prisoners) Amendment Act 2010 (the Amendment Act).3 On its face the amendment

1 International Covenant on Economic, Social and Cultural rights 1993 UNTS 3 (opened for signature 16 December 1966, entered into force 3 January 1976).
2 The law between 1993 and 2010 was derived from the 1986 Report of the Royal Commission on the Electoral System which noted (inter alia) that contemporary penal theory is generally…

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 [2014] NZHC 2225
Case: [2014] NZHC 2225
Decision Date: 12 September 2014

CaseChat Overview and Summary

In Taylor v Attorney-General, the applicants sought interim orders to preserve their right to vote in the 2014 general election. The applicants were serving prisoners who had been disenfranchised by the 2010 amendment to the Electoral Act 1993. The court was required to decide whether the interim relief sought by the applicants was necessary to preserve their position. The court found that the 2010 amendment had already disenfranchised the applicants and therefore there was no position to preserve. The applicants argued that the disenfranchisement provision could be read consistently with the New Zealand Bill of Rights Act 1990, the Treaty of Waitangi, international law, or that it was otherwise invalid. The court rejected these arguments and found that the disenfranchisement provision was clear on its face and could not be read in a way that was consistent with the applicants' arguments. The court also found that the provision was not invalid for want of compliance with the manner and form requirements of the Electoral Act. The application for interim relief was dismissed.

Orders