Taylor v Attorney-General
[2014] NZHC 1630
•11 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-4141 [2014] NZHC 1630
UNDER The New Zealand Bill of Rights Act 1990,
the Judicature Amendment Act 1972, Part
30 of the High Court RulesIN THE MATTER
of a declaration of inconsistency
BETWEEN
ARTHUR WILLIAM TAYLOR First Applicant
HINEMANU NGARONOA, SANDRA WILDE, KIRSTY OLIVIA FENSOM AND CLAIRE THRUPP
Second, Third, Fourth and Fifth Applicants
AND
THE ATTORNEY-GENERAL OF NEW ZEALAND
First Respondent
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Second Respondent
Hearing: 26-27 May 2014 Appearances:
First Applicant on own behalf
R Francois for the Second-Fifth Applicants
J C Pike QC for the RespondentsJudgment:
11 July 2014
JUDGMENT OF BROWN J
This judgment was delivered by me on 11 July 2014 at 12 noon, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Law, Wellington
W Simpson, Papakura
Counsel: R Francois, Auckland
Copy To: First Applicant
TAYLOR v ATTORNEY-GENERAL [2014] NZHC 1630 [11 July 2014]
Contents
Introduction ............................................................................................................[1] The legislative context ...........................................................................................[2] The statement of claim ...........................................................................................[8] The strike out application and opposition ............................................................[19] An issue left open .................................................................................................[23] Respondents’ submissions in support of striking out ...........................................[39] Applicants’ submissions in opposition .................................................................[45] Approach to the application .................................................................................[49] Article 9 of the Bill of Rights 1688......................................................................[53] The “wider principle” of comity ..........................................................................[61] Jurisdiction or practice? .......................................................................................[69] Analysis ................................................................................................................[79] Respondents’ first proposition [79] Respondents’ second proposition [87] Respondents’ third proposition [89] Second, third and fourth causes of action [93] The proper parties ................................................................................................[95] Disposition .........................................................................................................[100]
Introduction
[1] The primary relief sought in this proceeding is a declaration that the Electoral
(Disqualification of Sentenced Prisoners) Amendment Act 2010 (“the 2010
Amendment”) is inconsistent with the right to vote under s 12(a) of the New Zealand Bill of Rights Act 1990 (NZBORA).1 The key issue on the respondents’ strike out application is whether this Court has jurisdiction to entertain the proceeding seeking such relief.
The legislative context
[2] The right to vote in New Zealand is protected by s 12(a) of the NZBORA
which provides:
1 Declarations are also sought that the 2010 Amendment is inconsistent with s 19 of the NZBORA, ss 21(1)(f) and (g) of the Human Rights Act 1993, s 23(5) of the NZBORA and s 9 of the NZBORA.
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;
...
[3] In order to be qualified to vote in New Zealand a person must be both qualified to register and be registered on the Electoral Roll.2 As originally enacted the Electoral Act 1993 (“the Act”) provided for the disqualification of certain imprisoned persons from registration as electors as follows:
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 detention; or
(iii) A sentence of imprisonment for a term of 3 years or more, —
is being detained in a penal institution:
…
[4] On 16 December 2010 the 2010 Amendment came into force. Relevantly it amended s 80(1)(d) to read:
(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:
Section 6 of the 2010 Amendment provided that the existing status of persons disqualified or not disqualified for registration by s 80(1)(d) was not affected by the
amendment.
2 Electoral Act 1993, s 60.
[5] The procedure for giving effect to the disqualification was provided in s 81 which, as amended by the 2010 Amendment, provided:
81 Detention in prison pursuant to sentence of imprisonment
(1) Where a person who has been sentenced to imprisonment is received into a prison in which that person is to serve the whole or part of the sentence, the prison manager of that prison shall, not later than the seventh day after the day on which the prisoner is received into the prison, forward to the Chief Registrar of Electors a notice—
(a) Showing the name, previous residential address, and date of birth of that person; and
(b) Showing the name and address of the prison. (c) Repealed.3
(2) The Chief Registrar of Electors shall, on receiving a notice under subsection (1) of this section, forward a copy of that notice to the appropriate Registrar of Electors.
[6] When the Bill was introduced in February 2010 the Attorney-General presented to the House of Representatives a report pursuant to s 7 of the NZBORA which included the following statements:
2.The apparent inconsistency with the Bill of Rights Act arises from cl 4 of the Bill, which amends the Electoral Act 1993 to disqualify from registration as an elector any person who, under detention pursuant to a conviction, is being detained in a prison. The effect would be a blanket disenfranchisement of convicted persons detained in prisons on election day.
…
9.I consider that a blanket ban on prisoner voting raises an apparent inconsistency with s 12 of the Bill of Rights Act.
Is the apparent inconsistency justified in a free and democratic society?
10.Where a provision is found to be apparently inconsistent with a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is justifiable in terms of s 5 of that Act. The s 5 inquiry is essentially two-fold: whether the provision serves an important and significant objective, and whether there is a rational and proportionate connection between the provision and the objective.
3 Prior to the 2010 Amendment, (c) stated: “indicating whether the provisions of section 80(1)(d)
of this Act apply to that person.”
11. The Bill proposes a blanket voting ban on any convicted prisoner who is incarcerated on election day regardless of their offence. The explanatory note to the Bill appears to suggest that anyone sentenced to any period of imprisonment is a serious offender. The objective of the Bill appears to be that a person convicted for serious crimes against the community should forfeit the right to vote as part of their punishment. I will assume, without expressing an opinion, that temporarily disenfranchising serious offenders as a part of their punishment would be a significant and important objective.
12.The objective of the Bill is not rationally linked to the blanket ban on prisoner voting. It is questionable that every person serving a sentence of imprisonment is necessarily a serious offender. People who are not serious offenders will be disenfranchised. Fine defaulters may be sentenced to imprisonment as an alternative sentence. I doubt that this group of people can be characterised as serious offenders such that they should forfeit their right to vote.
13.Under the Bill, the Electoral Act would continue to disqualify electors being detained for a period exceeding three years in a hospital or secure facility in the context of a criminal process. An example of this is where a person has been found by a Court on conviction to be mentally impaired and is detained under an order made by the Court for a period exceeding three years. If the mentally impaired person was detained for less than three years, the Bill would not disqualify the person from registering as an elector. The Bill would therefore introduce irrational inconsistencies in the law where mentally impaired prisoners detained in a hospital or secure facility for less than three years could vote while all prisoners serving sentences less than three years in prisons would be disenfranchised.
14. The blanket ban on prisoner voting is both under and over inclusive.
It is under inclusive because a prisoner convicted of a serious violent offence who serves a two and a half year sentence in prison between
general elections will be able to vote. It is over inclusive because
someone convicted and given a one-week sentence that coincided with a general election would be unable to vote. The provision does
not impair the right to vote as minimally as reasonably possible as it
disenfranchises in an irrational and irregular manner.
15.The disenfranchising provisions of this Bill will depend entirely on the date of sentencing, which bears no relationship either to the objective of the Bill or to the conduct of the prisoners whose voting rights are taken away. The irrational effects of the Bill also cause it to be disproportionate to its objective.
16.I conclude that the blanket disenfranchisement of prisoners appears to be inconsistent with s 12 of the Bill of Rights Act and that it cannot be justified under s 5 of that Act.
[7] In addition to s 12(a), the following sections of the NZBORA are also relevant to this litigation:
9 Right not to be subjected to torture or cruel treatment
Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.
19 Freedom from discrimination
(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.
…
23 Rights of persons arrested or detained
…
(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
The statement of claim
[8] The statement of claim comprises eight parts. The first part recites the parties while the second part records the factual background to the claim including the Attorney-General’s s 7 report.
[9] The third part, headed “Declaration of Inconsistency”, comprises a series of legal propositions. These include the contentions that a declaration of inconsistency under the NZBORA is not inconsistent with the prohibition in s 4 and that the judiciary is entitled to consider the reasonableness and justification of limiting measures imposed by the legislature. It also records the applicants’ intention to take their case to the United Nations Human Rights Committee.
[10] Part 4, headed “International Standards on Prisoner Voting Rights”, recites extracts from the International Covenant on Civil and Political Rights and refers to the law of several countries, including Canada, Australia and the United Kingdom.
[11] Part 5 comprises the first cause of action, namely a breach of s 12 of the
NZBORA. It alleges, inter alia, that:
(a) the blanket ban on prisoner voting is not a justifiable violation of a citizen’s electoral rights under s 5 of the NZBORA. The right to elect the Government of New Zealand is a fundamental right.
(b)The limiting measure of the 2010 Amendment is not rationally connected to its purpose.
(c) The exclusion of prisoners from voting is a measure that impairs the right to vote more than is reasonably necessary to achieve the objective of the legislation.
(d)Prohibiting all prisoners from voting is not in due proportion to the objective of the 2010 Amendment. Disenfranchising prisoners who are not serious offenders is a disproportionate response to the gravity of their actual offending.
(e) The 2010 Amendment does not amount to a reasonable limitation on
the applicants’ right to vote under s 12 of the NZBORA.
[12] The relief which the applicants seek is:
A Declaration that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 is inconsistent with the right to vote under s 12(a) of the NZBORA.
[13] Part 6 comprises the second cause of action, namely a breach of s 19 of the
NZBORA. It alleges inter alia that:
(a) Maori are disproportionately represented in the prison population with Maori men representing 51 per cent of convicted male prisoners and Maori women representing 60 per cent of convicted female prisoners.
(b)The blanket ban on the right to vote in prisons amounts to a breach of the second and third applicants’ (who are indigenous people of New Zealand) rights under s 19(1) of the NZBORA by way of indirect discrimination under s 65 of the Human Rights Act.
[14] The relief sought in the second cause of action is:
A Declaration that the Electoral (Disqualification of Convicted Prisoners) Amendment Act 2010 is inconsistent with the right to be free from
discrimination under s 19 of the NZBORA and ss 21(1)(f) and 21(1)(g) of the Human Rights Act 1993.
[15] Part 7 comprises the third cause of action, namely a breach of s 23(5) of the
NZBORA. It is alleged that:
(a) excluding the applicants from voting in prison as part of their punishment amounts to treatment in terms of s 23(5);
(b)the blanket ban on prisoner voting is disproportionate and an undignified response to the individual circumstances of the applicants;
(c) the applicants are denied the right to choose a Government in their own country which is inconsistent with the right to respect their autonomy; and
(d) the 2010 Amendment fails to respect the applicants’ autonomy and
independence which are central to human dignity.
[16] The relief sought is:
A Declaration that the Electoral (Disqualification of Convicted Persons) Amendment Act 2010 is inconsistent with the applicants’ right to be treated with humanity and with respect for their inherent dignity under s 23(5) of the NZBORA.
[17] Part 8 of the pleading comprises the fourth cause of action, namely an alleged breach of s 9. It alleges that:
(a) The respondents have treated the applicants in a degrading and disproportionately severe manner in breach of s 9; and
(b)The third, fourth and fifth applicants are not serious offenders relative to prisoners serving terms of imprisonment of five years or more but are treated exactly the same.
[18] The relief sought comprises:
A Declaration that the Electoral (Disqualification of Convicted Prisoners) Amendment Act 2010 is inconsistent with the applicants’ right not to be subjected (sic) degrading and disproportionately severe treatment under s 9 of the NZBORA.
The strike out application and opposition
[19] The respondents’ application to strike out the claim is made in reliance on the inherent jurisdiction of the High Court, article 9 of the Bill of Rights Act 1688, s 4(a) of the NZBORA and r 4.56 of the High Court Rules.
[20] The stated grounds are as follows:
A. The court has no jurisdiction in relation to any matter pleaded: Neither respondent is able to be sued for the actions of the Governor-
General in assenting to the Electoral (Disqualification of Sentenced
Prisoners) Amendment Act (2010); and
When the Electoral (Disqualification of Sentenced Prisoners) Amendment Act (2010) was before the House, an occasion of privilege arose and continues. Once the court has determined that it is being required to adjudicate on a matter affecting the privilege of Parliament, it may have no further cognisance of it.
B. The proceeding is an abuse of process in that the applicants seek relief that the court cannot grant:
The relief sought, if granted, would breach the fundament principle of comity applying to the relationship between the judiciary and Parliament; and
The court has no jurisdiction to make a “declaration of inconsistency” in relation to the Electoral (Disqualification of Sentenced Prisoners) Amendment Act.
C. The proceeding is an abuse of process in that:
Any allegation of an act or omission on the part of the legislative branch of the Government of New Zealand inconsistent with the right to freedom from discrimination under anti-discrimination provisions of the New Zealand Bill of Rights Act and the Human Rights Act 1993 should be made under Part 1A of the Human Rights Act, in accordance with the purpose and provisions of that Part of the Act; …
[21] The applicants’ grounds of opposition are:
(a) The Court has jurisdiction to make a declaration of inconsistency in relation to the 2010 Amendment;
(b)A declaration of inconsistency supplements the role of the Attorney- General under s 7 and does not breach the principle of comity between the judiciary and Parliament; and
(c) The proceeding is not an abuse of process. The statement of claim is capable of amendment if the first and second respondents are improperly joined, or if the discrimination claim is not pleaded correctly in terms of Part 1A of the Human Rights Act 1993.
[22] The submissions for both sides canvassed judicial observations in the several judgments which have touched on, but not resolved, the key issue which this application raises. Prior to addressing the submissions it is convenient to review those judicial observations in chronological sequence.
An issue left open
[23] The point of departure4 is Moonen v Film and Literature Board of Review5 where the Court of Appeal adopted a five-step test for determining inconsistency with the NZBORA. The Court there recognised the power to “indicate” that a statutory provision was inconsistent with the NZBORA. It said:6
[19] The fifth and final step which arises after the Court has made the necessary determination under s 5, is for the Court to indicate whether the limitation is or is not justified. If justified, no inconsistency with s 5 arises, albeit there is, ex hypothesi, a limitation on the right or freedom concerned. If that limitation is not justified, there is an inconsistency with s 5 and the Court may declare this to be so, albeit bound to give effect to the limitation in terms of s 4.
[20] It might be said that the potentially difficult and detailed process involved under s 5 is somewhat academic when the provision in question is
4 Although earlier cases were addressed in submissions: Temese v Police (1992) 9 CRNZ 425 (CA); Quilter v Attorney-General [1998] 1 NZLR 523 (CA).
5 Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA).
6 Moonen, above n 5, at [19]-[20] (emphasis added).
bound to be applied according to its tenor by dint of s 4. Section 5 would have had more than persuasive effect if the Court had been given the power, as in Canada, to declare legislation invalid. That was deliberately not done in New Zealand and the late introduction of s 4 into the Bill of Rights was not accompanied by any express recognition of the remaining point of s 5. That section was, however, retained and should be regarded as serving some useful purpose, both in the present statutory context and in its other potential applications. That purpose necessarily involves the Court having the power, and on occasions the duty, to indicate that although a statutory provision must be enforced according to its proper meaning, it is inconsistent with the Bill of Rights, in that it constitutes an unreasonable limitation on the relevant right or freedom which cannot be demonstrably justified in a free and democratic society. Such judicial indication will be of value should the matter come to be examined by the Human Rights Committee. It may also be of assistance to Parliament if the subject arises in that forum. In the light of the presence of s 5 in the Bill of Rights, New Zealand society as a whole can rightly expect that on appropriate occasions the Courts will indicate whether a particular legislative provision is or is not justified thereunder.
[24] R v Poumako7 concerned the retrospectivity of the home invasion legislation. Although the Court considered that legislative reconsideration was desirable, the majority did not consider that it was appropriate to make a formal declaration without the benefit of full argument. In a strongly worded dissent Thomas J recorded his willingness to make a formal declaration.8
[25] I note in passing McGechan J’s respectful comment in Westco Lagan Ltd v Attorney-General9 (discussed further below) about the “adventurous proposals” for declarations of inconsistency in Moonen.
[26] In Zaoui v Attorney-General10 Williams J declined to make a declaration of inconsistency in the circumstances of that case but proceeded on the basis that the High Court was bound by the view of the Court of Appeal in Moonen and Poumako that the jurisdiction existed to do so.
[27] Belcher v Chief Executive of the Department of Corrections11 concerned provisions in the Parole Act 2002 relating to extended supervisions orders which
were inconsistent with the NZBORA and where the Crown did not seek,
7 R v Poumako [2000] 2 NZLR 695 (CA).
8 At [86].
9 Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40 (HC) at [59].
10 Zaoui v Attorney-General [2004] 2 NZLR 339 (HC) at [166].
11 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA).
affirmatively, to show that the retrospective nature of the ESO legislation was justified under s 5. The issue whether the courts have or should exercise jurisdiction to make a declaration of inconsistency was one of a number of matters held over to a subsequent hearing.
[28] However in the interim the Supreme Court was required to deal with an interlocutory application in Taunoa v Attorney-General.12 In rejecting an application to entertain, for the first time in that litigation, relief in the form of a declaration of inconsistency with the NZBORA, the Supreme Court said:13
… If some relief of the character sought might be available from the courts, on which we express no opinion, the appropriate place for the proceeding to be commenced is in the High Court which, unlike the appeal courts, has a general jurisdiction.
[29] Then on 20 February 2007 the Supreme Court delivered its decision in Hansen v R.14 There were five separate judgments, two of which made comments on the present issue. Justice McGrath observed:15
[253] While the Courts’ power to read down another provision so that it accords with the Bill of Rights, or to fill identified gaps in a statute, is accordingly limited by its function of interpretation, a New Zealand Court must never shirk its responsibility to indicate, in any case where it concludes that the measure being considered is inconsistent with protected rights, that it has inquired into the possibility of there being an available rights-consistent interpretation, that none could be found, and that it has been necessary for the Court to revert to s 4 of the Bill of Rights Act and uphold the ordinary meaning of the other statute. Normally that will be sufficiently apparent from the Court’s statement of its reasoning.
[254] Articulating that reasoning serves the important function of bringing to the attention of the Executive branch of government that the Court is of the view that there is a measure on the statute book which infringes protected rights and freedoms, which the Court has decided is not a justified limitation. It is then for the other branches of government to consider how to respond to the Court’s finding. While they are under no obligation to change the law and remedy the inconsistency, it is a reasonable constitutional expectation that there will be a reappraisal of the objectives of the particular measure, and of the means by which they were implemented in the legislation, in light of the finding of inconsistency with these fundamental rights and freedoms concerning which there is general consensus in New Zealand society and there are international obligations to affirm.
12 Taunoa v Attorney-General [2006] NZSC 95.
13 At [8].
14 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.
15 At [253]-[254] and [259] (emphasis added).
…
[259] The role of the Courts is, however, limited to ascertaining meaning of legislation in accordance with the statutory directions and does not extend to the responsibility that Courts assume in jurisdictions where human rights are protected by a supreme law. Nor does the role allow the Courts to apply common law powers to effect the implied repeal of legislation or otherwise to disapply or render its provisions ineffective. As a result, it is to be expected that New Zealand Courts from time to time will be constitutionally bound, applying s 4 of the Bill of Rights Act, to give effect to legislation which they have concluded is not capable of being read consistently with the Bill of Rights. In such instances it is the constitutional responsibility of the Court to indicate in its judgment that it has relied on s 4 of the Bill of Rights Act to uphold an inconsistent provision in another statute. Other branches of government are under no obligation to change the law to remedy the inconsistency, but it may be expected that there will be a reconsideration by them of the inconsistent legislation.
[30] Justice Anderson commented:
[267] In some cases that method may involve a finding by a Court that Parliament has enacted legislation that cannot be demonstrably justified in a free and democratic society. Although such legislation cannot be struck down, the Court’s opinion will have a social value in bringing to notice an enactment which is inconsistent with fundamental rights and freedoms. It is indicative of the strength of our democratic institutions that Parliament, although not countenancing its being overruled, has, by the terms of the Bill of Rights Act, accepted the prospect of judicial assessment of the consistency of its enactments with affirmed rights and freedoms.
[268] It is important to understand that although a Court may express what amounts to an advisory opinion, its perspective may be constrained by the limits of its own process and the scope of its inquiry. Its process will have the advantage of legal expertise but, sometimes, the disadvantage of lack of generality. The scope of its inquiry will be constrained by the nature of its judicial process. These limitations may warrant a margin of appreciation in circumstances where they significantly affect the Court’s inquiry. For the reasons I have expressed in para [264], it must be recognised that in respect of some rights and freedoms there will be little or no room for marginalisation. In any event, the Courts should not be diffident about calling attention to encroachment on fundamental rights and freedoms.
[31] As Mr Pike QC noted, the judicial indication proposed in Hansen has been
styled by some commentators as “an indication of inconsistency”16 and as a “Hansen
declaration”.17
16 Claudia Geiringer “On a Road to Nowhere: Implied Declarations of Inconsistency and the New
Zealand Bill of Rights Act” (2009) 40 VUWLR 613 at 616.
17 Philip Joseph “Constitutional Law” (2009) NZ Law Review 531. Also noted in R v Exley [2007] NZCA 393.
[32] In view of the content of the Supreme Court’s judgment in Taunoa,18 at the resumed hearing in the Belcher case on 13 March 2007 the Court of Appeal’s consideration of the question whether it should grant a declaration of inconsistency was confined to jurisdictional issues.19 A first difficulty was that in reality the Court of Appeal was being invited to exercise what was in substance an originating jurisdiction which the Court does not have. The second concerned the availability of a declaration in the context of criminal proceedings. The judgment of four members of the Court concluded in this way:20
[15] This is not to say that the consistency or otherwise of legislation with the New Zealand Bill of Rights Act is irrelevant in criminal cases. Indeed the contrary is obviously the case, as exemplified by R v Hansen [2007] NZSC 7. It may well be necessary for courts exercising criminal jurisdiction at all levels of the hierarchy courts (sic) either to make a finding of inconsistency (as in Hansen) or perhaps to assume inconsistency where the Crown has chosen not to develop an evidential basis for a s 5 justification (as in the present case).
[16] So if a declaration of inconsistency is available (on which we express no opinion), it should be sought in a civil proceeding commenced in the High Court, a course which we think is consistent with [8] of the Taunoa judgment.
Conclusion
[17] Accordingly, we conclude that this Court does not have jurisdiction in this case to make a declaration that any provision of the Parole Act 2002 is inconsistent with the New Zealand Bill of Rights Act 1990 or the International Covenant on Civil and Political Rights. It does not, of course, follow that we are saying that a declaration of inconsistency can never be made, in appropriate circumstances and on appropriate procedure.
[33] Mr Belcher sought leave to appeal to the Supreme Court. In its reasons declining leave the Supreme Court said:21
[6] As to the decision to decline a formal declaration of inconsistency: assuming, without deciding, that a declaration may be available in a criminal proceeding, we consider that it was entirely appropriate for the Court of Appeal to leave the matter in essentially the same way as it was subsequently left by the majority of this Court in R v Hansen where the inconsistency was described in the reasons for judgment but no declaration was made. It is also of some moment in the present case that
18 At [28] above.
19 Belcher v The Chief Executive of the Department of Corrections [2007] NZCA 174 at [4].
20 Hammond J confined his decision to the point that the Court of Appeal does not have originating jurisdiction and reserved his position on all other observations of the Court.
21 Belcher v The Chief Executive of the Department of Corrections [2007] NZSC 54 (emphasis added).
no issue concerning s 5 was required to be determined in the necessary course of interpreting the legislation and resolving questions between the parties. A response in the form of a declaration was quite unnecessary.
[7] We should, however, before leaving this matter correct the Court of Appeal’s erroneous view that, if a declaration of inconsistency had been otherwise available and appropriate, there would nevertheless have been in this case the same jurisdictional difficulty as existed in Taunoa v Attorney- General. The difficulty in that case arose from an unusual situation in which the asserted cause of action in respect of which relief was being sought in this Court could not have existed when the proceeding was before the High Court since the Act of Parliament in respect of which relief was sought had not been enacted until the Taunoa proceeding was already before the Court of Appeal.
This Court said:
No relief in the form now sought could have been granted in the Court of Appeal for the obvious reason that no issue relating to the Act was before it. This Court also has under s 25(1) all the powers of the Court of Appeal even if the proceeding has not been heard in that Court. But, again, as the issue was never before the High Court, the Court of Appeal would have lacked any power to hear it, for it too has no originating jurisdiction.
[8] In the present proceeding the issue, namely the application of the relevant aspect of the Parole Act to Mr Belcher’s circumstances, was before the High Court. Relief in the form of a declaration could, if otherwise available, have been granted by that Court and accordingly the Court of Appeal was not precluded from considering that question. It would not thereby have been exercising an originating jurisdiction. In this respect the Court of Appeal fell into error but, for the reasons given above, that does not require the granting of leave to appeal to this Court.
[34] Two months later the Court of Appeal engaged again with the issue of remedy in R v Exley22 where a “Hansen declaration” was sought in order to overcome the Belcher ruling concerning jurisdiction in criminal proceedings. The Court distinguished Hansen on the basis that there was no legitimate question of statutory interpretation because the wording of s 87 of the Sentencing Act 2002 was clear. The Court stated that Hansen is not authority for the proposition that the courts are empowered to conduct what are effectively commissions of inquiry into
acts of the legislature and the executive to see whether they measure up to the
requirements of the NZBORA.23
22 R v Exley, above n 17.
23 At [20].
[35] The position post-Belcher was conveniently summarised by the Court of Appeal in McDonnell v Chief Executive of the Department of Corrections in this way:24
[123] In summary, the position after the Belcher litigation is:
(a) No decision has yet been made by the Supreme Court on whether declarations of inconsistency are available in criminal proceedings. However, this Court has indicated (in an obiter comment) that they are not; a separate civil proceeding is required: see [119] above. The Supreme Court did not give leave to appeal from that decision and did not contradict that comment (though it did contradict another aspect of the decision).
(b) The preferred approach to identifying inconsistencies is to do so in the reasons for judgment, without issuing a formal declaration.
(c) A declaration will be unnecessary where s 5 of the Bill of Rights does not need to be considered in order to determine the questions at issue between the parties.
(d) There is no jurisdictional bar to the Court of Appeal granting a declaration of inconsistency where such a declaration was not first sought in the High Court but was technically available.
[36] The issue was addressed in circumstances with a greater degree of connection to the present case in Boscawen v Attorney-General (No 2)25 where judicial review was sought of the decision of the Attorney-General to refrain from making a s 7 report in relation to the then Electoral Finance Bill 2007. Although the application was struck out at first instance, Clifford J remarked:26
I have, moreover, real reservations about the validity of the respondent’s argument as to the availability of declarations of inconsistency, as formal relief, based on a claim of privilege. Whilst I accept that such declarations of inconsistency could shift the boundaries between the Courts and Parliament, I do not see their grant, particularly given s 4 of NZBORA, as necessarily entailing a breach of parliamentary privilege. However, this does not of itself lead to the conclusion that – as a general proposition – formal relief by way of declarations of inconsistency will be available in New Zealand. I note that other jurisdictions have accepted the remedy, but only after explicit legislative sanction through the inclusion of a statutory power: see s 4 of the Human Rights Act 1998 (UK and s 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). I note further that the Court of Appeal did not make such a declaration in R v Poumako [2000] 2 NZLR 695. I note
24 McDonnell v Chief Executive of the Department of Corrections (2009) 8 HRNZ 770 (CA) (emphasis added).
25 Boscawen v Attorney-General (No 2) (2008) 8 HRNZ 520 (HC).
26 At [58].
finally that unlike in the cases of Reid v Minister of Labour [2005] NZAR
125 and Zaoui v Attorney-General (No 3) (HC AK CIV-2003-404-5872 1
December 2003 Williams J), the applicants have not sought declarations of inconsistency through NZBORA itself.
[37] On appeal the Court of Appeal discussed the issue of the jurisdiction to make declarations of inconsistency in two different scenarios:27
(a) In the abstract, without there being an underlying factual dispute between the parties; and
(b) Where there is a dispute.
It concluded:
[55] All of these factors count against there being jurisdiction for the High Court to make a declaration of inconsistency in the abstract. But, ultimately, because of our views on the non-justiciability of the s 7 obligation, there is no need to make a final decision on this aspect of the case and so we leave the point open.
Jurisdiction to make declarations of inconsistency where there is a dispute
[56] We do not need to comment on the availability of a declaration of inconsistency in a case where there is a dispute between the parties (whether in a case commenced for the purpose of seeking the declaration as a stand- alone remedy or in the course of a criminal or civil proceeding) for the simple reason that this is not such a case. Clifford J did not express a view on this aspect of the case either. The question as to whether a declaration of inconsistency is an available remedy under the NZBORA is still to be resolved: see the discussion in Geiringer, “An Update on Implied Declarations of Inconsistency under the New Zealand Bill of Rights Act” (paper presented at “Celebrating 60 years of the Universal Declaration of Human Rights”, Wellington, 9 and 10 December 2008). We prefer to leave the question to be decided in a case in which the outcome depends on the answer, as this Court did in R v Poumako and the Supreme Court did in Belcher v The Chief Executive of the Department of Corrections [2007] NZSC 54.
[38] A declaration of inconsistency between the Parole Act 2002 and the
NZBORA was sought in Miller v The New Zealand Parole Board28 but the Court
concluded that, “leaving aside the jurisprudential arguments as to whether the courts
27 Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229.
28 Miller v The New Zealand Parole Board [2010] NZCA 600.
should grant declarations of inconsistency”, a declaration would not have been
appropriate in that case because there was no relevant inconsistency.29
Respondents’ submissions in support of striking out
[39] Mr Pike advanced his case by reference to the following hierarchy of propositions:
(1)The Court has no jurisdiction in any case to issue an order in the form of a declaration of inconsistency;
(2)If proposition (1) is rejected or the Court considers it unnecessary to decide it, then in the particular case, where Parliament enacted the
2010 Amendment notwithstanding the presentation of a s 7 report by the Attorney-General, a clear issue of comity arises. As Parliament has made its ruling on the matter, there is the potential for the courts and Parliament to be drawn into conflict if the Court were to make an order that, as a matter of law, Parliament had acted unlawfully; and
(3)If jurisdiction exists it should not be exercised in an abstract context where there is no dispute between the parties providing the context for the Court to engage with the Moonen process and, if necessary, indicate in its reasoning the fact of inconsistency.
[40] In support of the first proposition it was contended that, howsoever formulated, the making of a declaration of invalidity and issuing and sealing a judgment effecting the finding is a determination by a Court that in enacting a particular statutory provision Parliament had created circumstances in which the executive would be acting contrary to law and had itself acted unlawfully. To do so, it was said, would bring the Court into conflict with Parliament contrary to the fundamental principle of comity.
[41] On a more narrow footing it was said that the Court would be enjoined to call into question a proceeding in Parliament in breach of article 9 of the Bill of Rights in
29 At [75].
a matter clearly beyond that contemplated by the House via the enactment of s 5 of
NZBORA.
[42] The second proposition again invoked the comity issue but refined it by reference to the present scenario where the Attorney-General has already presented a s 7 report drawing attention to an instance of inconsistency.
[43] The third proposition was characterised as a procedural objection. The concept of a stand-alone or purpose built application was said to be inappropriate in that the Court was necessarily unable to take the less confrontational step (again with comity in mind) of indicating or opining in the judgment on the judicial concerns as to NZBORA compliance.
[44] Mr Pike conducted a careful review of the authorities noted at [23]-[38] along with several others touching on the distinct constitutional roles of Parliament and the courts. He also noted the legislative history of the NZBORA, in particular the retreat from its original proposed status as supreme law to be enforced by the courts. This retreat was succinctly described by Thomas J in Quilter v Attorney-General.30
Applicants’ submissions in opposition
[45] The argument for the applicants was commenced by Mr Francois on the afternoon of 26 May. However on the following morning Mr Taylor preferred to advance argument on his own behalf and Mr Francois presented submissions for the other applicants.
[46] Mr Francois emphasised that the relief sought was not an order but “just a declaration”. I apprehend that he viewed the relief sought as in effect asking the Court to “proclaim a violation” to adopt the phrase of Thomas J in Quilter.31 He frankly acknowledged that the objective in securing such relief was to raise public awareness about the loss of the prisoners’ rights to vote, making the point that there was a public interest in making known the fact that the legislature had violated
prisoners’ rights. He explained that the Fourth Estate had a role in raising that
30 Quilter v Attorney-General, above n 4, at 541.
31 At 554.
awareness and that they were more likely to take notice of something in the form of an order of the Court than of observations merely made in the course of reasons for judgment.
[47] Mr Taylor commenced his presentation by noting the principles applicable in strike out applications, primarily in Attorney-General v Prince and Gardner32 and Couch v Attorney-General.33 He relied in particular on the observation in Couch at [33] that the case must be so certainly or clearly bad that it should be precluded from going forward and the caution that particular care is required in areas where the law
is confused or developing.
[48] Like Mr Pike, Mr Taylor also undertook a review of several of the decisions noted at [23]-[38] above and he relied in particular on commentaries in Subordinate Legislation in New Zealand34 and Statute Law in New Zealand.35 He emphasised the importance of the availability of an effective remedy for breaches of the NZBORA. His contention was that the grant of a declaration of inconsistency was a relatively small step forward from the indications of inconsistency (Hansen declarations) in
decisions such as Hansen and Poumako.
Approach to the application
[49] The principles applicable to a strike out application are as submitted by Mr Taylor. The claim or the ground of relief sought must be so clearly untenable as to be suitable for peremptory determination.36 Adapting an observation in the second judgment of the Supreme Court’s decision in Couch (concerning whether policy militated against a duty of care),37 the claim should be struck out on the ground of lack of jurisdiction only if, at this stage of the proceedings, it can be said that this is
undoubtedly so.
32 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.
33 Couch v Attorney-General [2008] 3 NZLR 725 (SC).
34 Ross Carter and Jason McHerron and Ryan Malone Subordinate Legislation in New Zealand
(Lexis Nexis, Wellington, 2013).
35 John Burrows and Ross Carter Statute Law in New Zealand (4th ed, Lexis Nexis, 2009).
36 Couch, above n 33, at [3].
37 Couch, above n 33, at [126].
[50] The parties are in accord as to what Mr Pike described as the jurisprudential underpinning of the declaratory relief as sought. It is accepted by the applicants that the declarations are not sought under the Declaratory Judgments Act 1908.38 If the jurisdiction to make declarations of the nature sought exists, it must arise from an extension of the Baigent39 reasoning from which it is said that Parliament has assigned to the courts the task of crafting effective remedies for a breach of NZBORA.
[51] In the course of his submissions Mr Francois floated the idea of amending the pleadings to substitute a claim for Baigent-style damages in order to overcome any jurisdictional impediment with the pleadings in their current form (possibly anticipated by ground (c) in 0). Consequently in my Minute of 28 May 2014 I granted leave to the applicants to file an amended pleading introducing a claim for damages by 11 June 2014. However in a memorandum dated 6 June 2014
Mr Francois advised that a decision had been made not to amend the pleadings to include a prayer for relief for damages.
[52] I turn to consider the respondents’ contention in light of the approach stated above. The first ground (or “top shelf” argument as it was referred to in the course of argument), that the Court simply cannot make an order in the nature of a declaration of inconsistency and that the proceeding should accordingly be struck out in limine, invokes both article 9 and the comity principle.
Article 9 of the Bill of Rights 1688
[53] This case concerns enacted legislation and hence the argument founded on article 9 can be disposed of quite briefly. Article 9 provides as follows:
"Freedom of Speech - That the freedome of speech and debates or proceedings in Parlyament ought not be impeached or questioned in any court or place out of Parlyament."
38 See Boscawen, above n 27.
39 Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA).
[54] As Lord Browne-Wilkinson said in Pepper v Hart,40 article 9 is a provision of the highest constitutional importance and should not be narrowly construed. The principal matter to which it is directed is freedom of speech and debate in the House of Representatives and in parliamentary committees where the core or essential business of Parliament takes place.41 It ensures the ability of Members of Parliament to discuss and say what they will.
[55] However it is not the purpose of article 9 to restrain the courts from commenting on legislation once enacted. As Lord Browne-Wilkinson said with reference to the submission of the UK Attorney-General in Pepper v Hart that use of Parliamentary materials by courts as an aid to statutory interpretation would infringe article 9:42
But even given a generous approach to this construction, I find it impossible to attach the breadth of meaning to the word “question” which the Attorney- General urges. It must be remembered that article 9 prohibits questioning not only “in any court” but also in any “place out of Parliament”. If the Attorney-General’s submission is correct, any comment in the media or elsewhere on what is said in Parliament would constitute “questioning” since all Members of Parliament must speak and act taking into account what political commentators and other will say. Plainly article 9 cannot have effect so as to stifle the freedom of all to comment on what is said in Parliament, even though such comment may influence Members in what they say.
[56] In a New Zealand context that concern about stifling the freedom of all to comment finds support in s 14 of the NZBORA. The relationship between article 9 and s 14 was reflected upon by Cooke P in Television New Zealand Ltd v Prebble:43
The New Zealand Bill of Rights Act 1990 is of assistance on this whole matter. Section 14 affirms:
"14. Freedom of expression — Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form."
Both a Member of Parliament and an outside commentator on his or her performance have rights under s 14. They have to be reconciled as practically as possible. In working out the common law in this field regard has to be had to s 5, which allows for such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
40 Pepper v Hart [1993] AC 593 (HL) at 638.
41 R v Chaytor [2010] UKSC 52, [2011] 1 AC 684 at [47] per Lord Phillips of Worth Matravers.
42 Pepper v Hart, above n 40, at 638.
43 Television New Zealand Ltd v Prebble [1993] 3 NZLR 513 (CA) at 523.
Article 9 of the Bill of Rights 1689 (or 1688) is in force in New Zealand by virtue of the Imperial Laws Application Act 1988, s 3 and the first schedule. It is in my view an "enactment" with the meaning of s 6 of the New Zealand Bill of Rights Act. Therefore, if it can be given a meaning consistent with the rights and freedoms contained in our Act, that meaning shall be preferred to any other meaning. Article 9 need not be interpreted in a way leaving a Member of Parliament free to sue a person in circumstances which would severely limit that person's rights under s 14. Although separated by three centuries, the English Bill of Rights and the New Zealand Bill of Rights are capable of operating together to produce a fair result.
[57] The proper interpretation of a statute is a matter for the courts, not Parliament. As Lord Nicholls of Birkenhead has remarked, this principle is as fundamental to the constitution as the principle that Parliament has exclusive cognisance (jurisdiction) over its own affairs.44 The task of interpretation is qualified by the requirement that statutes must, where possible, be interpreted consistently with the NZBORA. The concluding steps in the six step statutory sequence identified by Tipping J in Hansen are:45
Step 5 If Parliament’s intended meaning represents an unjustified limit under s 5, the court must determine the words in question again under s 6, to see if it is reasonably possible for a meaning consistent or less consistent with the relevant right or freedom to be found in them. If so, that meaning must be adopted.
Step 6 If it is not reasonably possible to find a consistent or less inconsistent meaning, s 4 mandates that Parliament’s intended meaning be adopted.
[58] The very act of engaging in that process will from time to time inevitably lead courts to state in their reasons for judgment that a statutory provision is inconsistent with the NZBORA. That is simply the consequence of the pursuit of that sequence of analysis. It is rationalisation of the interplay between ss 4, 5 and 6 which Parliament has ordained.
[59] There could be no suggestion (and none was made by Mr Pike) that article 9 would be contravened by the act of a court recording in its reasoning a conclusion as to statutory inconsistency with the NZBORA. If that is so, then it is difficult to see
how the making of a declaration of inconsistency could amount to a contravention of
44 R (Jackson) v Attorney General [2006] 1 AC 262 (HL) at [51]. See also Rothmans Pall Mall
(NZ) Ltd v Attorney-General [1991] 2 NZLR 323 (HC).
45 Hansen, above n 14, at [92].
article 9. While the vehicle for expressing the Court’s view on the issue of inconsistency would be procedurally different (i.e. in reasons for judgment as distinct from embodying the opinion in a formal order), the implications from the perspective of Parliamentary freedom of speech would not appear to be materially different.
[60] Consequently I do not consider that the contended lack of jurisdiction to make declarations of inconsistency is to be derived from article 9.
The “wider principle” of comity
[61] Important as it is, article 9 is but one dimension of the relationship between Parliament and the courts. The broader perspective was explained by Lord Browne- Wilkinson’s in Prebble v Television New Zealand Ltd:46
In addition to art 9 itself, there is a long line of authority which supports a wider principle, of which art 9 is merely one manifestation, viz, that the Courts and Parliament are both astute to recognise their respective constitutional roles. So far as the Courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges: Burdett v Abbot (1811) 14 East 1; Stockdale v Hansard (1839) 9 Ad & El 1; Bradlaugh v Gossett (1884) 12 QBD 271; British Railways Board v Pickin [1974] AC 765; Pepper (Inspector of Taxes) v Hart [1993] AC 593. As Blackstone said in his commentaries (17th ed,
1830), vol 1, p 163:
". . . the whole of the law and custom of parliament has its original from this one maxim, 'that whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere'."
[62] The early part of that dictum was quoted in a recent report of the Privileges
Committee prefaced by the observation:47
It is at the margins that the greatest challenge arises in the relationship between the legislative and judicial branches.
46 Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC) at 6-7.
47 Privileges Committee Question of privilege concerning the defamation action Attorney-General and Gow v Leigh (June 2013) at 15.
[63] I think that it is fair to say that the issue raised in this proceeding as to the jurisdiction of the High Court to make declarations of inconsistency resides at those margins.
[64] The nature of the distinct constitutional roles was explained by Lord Simon of Glaisdale in Pickin v British Railways Board cited by Mr Pike:48
It is well known that in the past there have been dangerous strains between the law courts and Parliament–dangerous because each institution has its own particular role to play in our constitution, and because collision between the two institutions is likely to impair their power to vouchsafe those constitutional rights for which citizens depend on them. So for many years Parliament and the courts have each been astute to respect the sphere of action and the privileges of the other–Parliament, for example, by its sub judice rule, the courts by taking care to exclude evidence which might amount to infringement of parliamentary privilege (for a recent example, see Dingle v. Associated Newspapers Ltd. [1960] 2 Q.B. 405).
[65] Earlier in the judgment he said:49
The system by which, in this country, those liable to be affected by general political decisions have some control over the decision-making is parliamentary democracy. Its peculiar feature in constitutional law is the sovereignty of Parliament. This involves that, contrary to what was sometimes asserted before the 18th century, and in contradistinction to some other democratic systems, the courts in this country have no power to declare enacted law to be invalid. It was conceded before your Lordships (contrary to what seems to have been accepted in the Court of Appeal) that the courts cannot directly declare enacted law to be invalid.
[66] The absence of such a power is of course expressly preserved in s 4 of the
NZBORA which provides:
4 Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) Decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this
Bill of Rights.
48 Pickin v British Railways Board [1974] AC 765 (HL) at 799.
49 At 798.
[67] In a sense the difference between the parties on the issue is one of perspective. The applicants see a declaration of inconsistency as a small step beyond the indications of inconsistency (or the Hansen declarations) contained in the reasons for judgment in several cases. They emphasise that such a declaration does not offend against s 4, a point validated by the explanation in s 92K(1) of the Human
Rights Act 1993 as to the effect of a declaration under s 92J,50 namely that it does
not:
(a) affect the validity, application or enforcement of the enactment in respect of which it is given; or
…
[68] The respondents view the making of such a declaration as amounting to a formal order that Parliament has in effect acted unlawfully. I apprehend that they see a formal declaratory order as inconsistent with the statement of Holt CJ almost three centuries prior to the enactment of the NZBORA that an Act of Parliament can do no wrong.51 As such, a declaration of inconsistency is viewed as a substantial disturbance of the delicate balance of mutual respect and restraint between the courts and Parliament.
Jurisdiction or practice?
[69] The substantive issue, then, is whether the assertion or recognition of the jurisdiction to make such a declaration would amount to a repudiation of “comity” and an incursion beyond the constitutional boundary. While the issue is novel in the context of enacted legislation, the concepts have been analysed previously with reference to pending legislation. As McGechan J observed in Westco Lagan Ltd v Attorney-General:52
… As Pickin's case and succeeding authority demonstrate, there is a wider principle in play. Its essence is that the Courts should not interfere so as to frustrate the powers of the House to enact legislation. Whether it is a matter of jurisdiction or practice, and I prefer the latter, there is a
50 Section 3(2)(b) of the Human Rights Act 1998 (UK) is expressed in similar terms.
51 City of London v Wood (1701) 12 Mod Rep 669 at 687-688, 88 ER 1592 at 1602. The complete comment was: “… an Act of Parliament can do no wrong, though it may do several things that look pretty odd.”
52 Westco Lagan Ltd v Attorney-General, above n 9, at [98] (emphasis added).
constitutional boundary to observe. Sometimes this principle is called "comity" as it reflects a reciprocal principle that Parliament should not intervene in the conduct of the courts in relation to particular cases. The boundaries involved in non-interference in the conduct of Parliament are not determined on any fixed basis or by some bright line. The decision is a matter of judgment and common-sense. Boundaries may evolve and modify as times and circumstances dictate, as long as the underlying principle is kept in mind.
[70] Similar observations were made by Cooke P in Te Runanga o Wharekauri Rekohu Inc v Attorney-General53 on the question whether the principle of non- interference is a matter of jurisdiction or a rule of practice.
[71] Interestingly McGechan J volunteered the following observations relating to legislation once enacted:54
… [The Court] cannot strike down such legislative changes once made (subject to the possible extreme reservation mentioned). There is no supreme law in New Zealand which inhibits those powers. In particular, Parliament can pass laws which are directly contrary to provisions of the BOR. Section
3, referring to the legislative branch, does not enact otherwise. The safeguard, following upon decision to not enact the BOR as supreme law, is
provision for Attorney-General to give s 7 notification to the House. The
House must know this is occurring, and give proper consideration to proposed legislation in that light. It is not for the unelected Courts to frustrate that legislative ability. If content of legislation offends, the remedies are political and ultimately electoral. The fact those alternatives seem monumentally difficult, indeed unreal, to particular persons, or to those espousing unpopular causes, is no more than a dark side of democracy.
[72] But, of course, what is sought in the present case is a remedy which per se is neither political nor electoral but judicial, albeit one that (while unenforceable) is perhaps calculated to be prayed in aid of political or electoral initiatives.
[73] An interlocutory judgment at first instance is not a suitable vehicle for an exegesis about the supremacy of Parliament or judicial caveats about possible extreme scenarios. For present purposes, suffice to say that it is now recognised that it is no longer correct to say that Parliament’s freedom to legislate admits of no
qualification whatever. In R (Jackson) Lord Hope of Graighead noted55 that,
gradually but surely, the English principle of absolute sovereignty of Parliament is
53 Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301(CA) at 307. He too considered it a rule of practice
54 Westco Lagan, above n 52, at [94] (emphasis added).
55 R (Jackson), above n 44, at [104]-[105].
being qualified, while acknowledging that for the most part the qualifications were themselves the product of measures enacted by Parliament, citing as one example the Human Rights Act 1998.
[74] By contrast however, Lord Steyn recognised the supremacy of Parliament (which he referred to as the general principle of the constitution) as being a construct of the common law created by the judges. If that is so, he said, then it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.56 One of the exceptional circumstances which he contemplated was an attempt by Parliament to abolish judicial review.
[75] Assuming for the purposes of current analysis that “comity” (as invoked by the respondents) extends beyond the point of the enacting of legislation and applies to regulate the relationship between Parliament and the courts, even in the context of enacted legislation, the question as to the source of the constitutional boundary is very relevant to the issue which is the focus of this strike out application, namely does the High Court have jurisdiction to grant declarations of inconsistency. More particularly, is the withholding of such relief a recognition of an absence of jurisdiction to grant it or a respectful reticence to take a formal step in the observance of a settled rule of practice?
[76] The significance of that distinction was thoughtfully explored by Lord Scott of Foscote in Tehrani v Secretary of State for the Home Department.57
66. When issues are raised as to whether or not a court of law has jurisdiction to deal with a particular matter brought before it, it is necessary to be clear about what is meant by "jurisdiction". In its strict sense the "jurisdiction" of a court refers to the matters that the court is competent to deal with. Courts created by statute are competent to deal with matters that the statute creating them empowered them to deal with. The jurisdiction of these courts may be expressly or impliedly limited by the statute creating them or by rules of court made under statutory authority. Courts whose jurisdiction is not statutory but inherent, too, may have jurisdictional limits imposed on them by rules of court. But whether or not a court has jurisdictional limits (in the strict sense) there are often rules of practice,
56 At [102].
57 Tehrani v Secretary of State for the Home Department [2006] UKHL 47, [2007] 1 AC 521 at
[66] (emphasis added).
some produced by long-standing judicial authority, which place limits on the sort of cases that it would be proper for the court to deal with or on the relief that it would be proper for the court to grant. The distinction was referred to by Pickford LJ in Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536, 563. He said:
"The word 'jurisdiction' and the expression 'the court has no jurisdiction' are used in different senses which I think often leads to confusion. The first and, in my opinion, the only really correct sense of the expression that the court has no jurisdiction is that it has no power to deal with and decide the dispute as to the subject-matter before it, no matter in what form or by whom it is raised. But there is another sense in which it is often used, ie that although the court has power to decide the question it will not according to its settled practice do so except in a certain way and under certain circumstances."
These comments were endorsed by Diplock LJ (as he then was) in Garthwaite v Garthwaite [1964] P 356. He referred with approval (at p 387) to what Pickford LJ had said and continued:
"In its narrow and strict sense, the 'jurisdiction' of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject- matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief sought, or to any combination of these factors. In its wider sense it embraces also the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its
'jurisdiction' (in the strict sense) or as to the circumstances in which it will grant a particular kind of relief which it has
'jurisdiction' (in the strict sense) to grant, including its settled practice to refuse to exercise such powers, or to grant such
relief in particular circumstances."
[77] The distinction between jurisdiction and practice was more succinctly captured in Lord Diplock’s later observations in Rediffusion (Hong Kong) Ltd v The Attorney General Hong Kong:58
When considering an action claiming relief in the form of discretionary remedies only, it is thus important to distinguish between the jurisdiction of the Court to entertain the action at all. That is to embark upon the enquiry where the facts exist which would entitle the Court to grant the relief claimed, and a settled practice of the Court to exercise its discretion by withholding the relief if the facts found to exist disclose a particular kind of factual situation. The application of a discretion to refuse relief even though this may be pursuant to a settled practice is an exercise of jurisdiction not a denial of it.
58 Rediffusion (Hong Kong) Ltd v The Attorney General Hong Kong [1970] AC 1136 (PC) at 1155 (emphasis added).
[78] Citing Tehrani59 the Supreme Court in Commissioner of Inland Revenue v Redcliffe Forestry Ltd60 said that the principal instance of a reason established by judicial authority for why a court should not exercise jurisdiction which, strictly it possesses, is the doctrine of forum non conveniens. Issues of forum non conveniens
do not arise unless there are competing courts, each of which has jurisdiction (in the strict sense) to deal with the subject matter of the dispute. As Lord Scott observed, if one of two competing courts lacks jurisdiction (in the strict sense) a plea of forum non conveniens could never be a bar to the exercise by the other court of its jurisdiction.61
Analysis
Respondents’ first proposition
[79] While the analogy is distant, in my view the observance of the comity principle is a further instance of a scenario where, generally speaking, the courts choose not to exercise a jurisdiction which, strictly they possess, namely to issue declarations of inconsistency of statutes with the NZBORA. I consider that the
courts are mindful, as Clifford J noted in Boscawen,62 that issuing formal
declarations of inconsistency could shift the boundaries between the courts and
Parliament.
[80] They recognise that the exercise of the power, or the discharge of the duty,63 to indicate the fact of inconsistency can be achieved by suitably expressed reasons for judgment. However while I agree with Professor Joseph’s view that a fear64 of fracturing political-judicial relations has influenced the courts’ approach,65 I would not associate myself with his second suggested influence, namely a fear that a formal order would be ignored with disdain or impunity. If the inconsistency was
sufficiently egregious to spur the Court to issue a formal declaration, I do not
consider that it would be deterred by the prospect of a want of response on the part
59 Tehrani, above n 57, at [67].
60 Commissioner of Inland Revenue v Redcliffe Forestry Ltd [2013] 1 NZLR 804 (SC) at [27].
61 At [67].
62 At [36] above.
63 Moonen, above n 5, at [23] above.
64 I believe that “solicitude” would better describe the courts’ attitude.
65 Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at [28.5.4].
of the legislature. As the Chief Justice suggested in a different context in Attorney- General v Chapman66 Her Majesty’s judges are made of sterner stuff.
[81] That said, it may well be that the courts will diplomatically refrain from taking the step to issue formal declarations, at least until the jurisdiction (which I consider they have in the strict sense) is formalised in legislation similar to s 92J of the Human Rights Act 1993 and the Human Rights Act 1998 (UK).67 The recognition in legislation of such a jurisdiction demonstrates that legislatures do not view declarations of inconsistency or incompatibility as antithetical. As the UK
statute demonstrates, such legislation has the distinct advantage of preserving the courts’ discretion while providing a post-declaration legislative mechanism for review of the state of legislative inconsistency which confers a discretion on the relevant Minister to take remedial steps where the Minister considers that there are compelling reasons for doing so.68
[82] It follows that I consider that the respondents have not demonstrated that the claim should be struck out on the ground that it can be said that the Court undoubtedly lacks jurisdiction (in the strict sense) to issue declarations of inconsistency of the nature sought in the statement of claim.69
[83] Mindful however that Mr Taylor is self-represented, it is only right that I should note that, as my reasons above reflect, a decision dismissing the current application could be a Pyrrhic victory for the applicants. To adopt the terminology of the Privileges Committee,70 my view of the Court’s current jurisdiction to grant declarations of inconsistency is: in theory “yes” but in practice “no”. As McGrath J
observed in Hansen,71 normally the Court’s view that the measure being considered
66 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [66].
67 Also the Human Rights Act 2004 (ACT) which, like the UK statute, provides for a “declaration of incompatability” and the Charter of Human Rights and Responsibilities Act 2006 (Victoria) which provides for a “declaration of inconsistent interpretation”.
68 Declarations of incompatibility are discussed in Harry Woolf De Smith’s Judicial Review (7th ed, Sweet and Maxwell, London, 2013) at [13-047]-[13-050].
69 At [12],[14],[16] and 0 above.
70 At footnote 42: In fact the Committee concluded that, to the question whether the House is bound to defer to the courts in any question of a breach of article 9 which has been determined in a judicial question, the answer was in theory “no”, but in practice “yes”.
71 At [253] quoted at [29] above.
is inconsistent with protected rights will be sufficiently apparent from the Court’s
statement of its reasoning.72
[84] Indeed in Mr Taylor’s case, he may also face a standing issue given that he
was already serving a sentence of more than three years imprisonment prior to the
2010 Amendment being enacted. The 2010 Amendment made clear that existing states of disqualification for registration were not affected.73 In the context of the Human Rights Act 1998 (UK) it has been held that the Court will not normally grant a declaration to a person who is not affected by the breach.74
[85] The courts’ general reluctance to grant declarations of inconsistency in view of the comity principle would be fortified in a case such as the present where the safeguard, which the NZBORA provides, of an Attorney-General’s s 7 report had been engaged. That report is unequivocal.75 Yet Parliament chose to enact the 2010
Amendment in full knowledge of the Attorney-General’s views.
[86] The case for granting a declaration might commend itself where there has not been a s 7 report, particularly if the inconsistent provision was introduced subsequent to the introduction of the Bill at a point where the opportunity for a s 7 report had passed. In that regard I note the suggestion made by Andrew Butler that there are several lacunae in the operation of the s 7 reporting mechanism that could be “usefully patched over” through the exercise of a judicial indication of inconsistency
jurisdiction.76 However, in a case such as the present where the Attorney-General
has presented a report specifically on the issue and Parliament has remained unmoved, I consider that a Court would be particularly hesitant to consider the grant of a declaration in order to supposedly “supplement”77 the role of the Attorney-
General.
72 Geiringer reviews a number of decisions in her article above n 16, and concludes that, unless there is a marked change in direction, the prospects of an implied declaration of inconsistency power being exercised in any but the rarest of circumstances are poor (at 640).
73 Section 6 of the 2010 Amendment.
74 Lancashire County Council v Taylor [2005] EWCA Civ 284, [2005] 1 WLR 2668 at [42].
75 At [6] above.
76 Andrew Butler “Judicial Indications of Inconsistency – A New Weapon in the Bill of Rights
Armoury?” [2008] NZ Law Review 43 at 49.
77 See (b) in 0 above.
Respondents’ second proposition
[87] That brings me to Mr Pike’s second proposition.78 I agree that where Parliament has considered and rejected the views of the Attorney-General, an issue of comity arises for the Court when invited to entertain the grant of a declaration of inconsistency of a similar tenor to the s 7 report which has not been adopted.
[88] As I have said, in such circumstances the grant of a declaration is even less likely to be contemplated. However, the jurisdiction (assuming it exists) would remain. If so, it is not part of my role on an application of the present nature to strike out a proceeding on the grounds that I anticipate that it is very unlikely that the jurisdiction would be exercised.
Respondents’ third proposition
[89] Similarly, I have some sympathy with Mr Pike’s third proposition. The Court may well be unwilling to countenance the grant of a declaration of inconsistency in an abstract context where it has not had occasion to engage with the Moonen process.79 As Mr Pike put it, a stand-alone application deprives the Court of the opportunity to take the less confrontational step of an indication of inconsistency.
[90] However the adoption of an invariable practice not to entertain so-called stand-alone applications could have the consequence that declarations of inconsistency might not be available in the most egregious or compelling circumstances, e.g. the example of Lord Steyn80 of an attempt by Parliament to abolish judicial review (thereby abrogating s 27(2) of the NZBORA).
[91] Ms Geiringer notes81 that a limitation on freestanding applications could have significant implications when applied in conjunction with the Belcher rule limiting
the availability of declarations of inconsistency to civil proceedings. She makes the
78 At [39].
79 Belcher, above n 21, at [33] above; Exley, above n 17, at [34] above; McDonnell, above n 24, at
[35] above; Boscawen, above n 27, at [37] above. Freestanding applications are not permitted in the two Australian provisions: see n 67. However Geiringer notes that the significance of the restriction is less than it would be in the New Zealand context because declarations of inconsistency in the Australian states are not confined to civil proceedings: above n 16, at 629.
80 At [74] above.
81 Geiringer, above n 16, at 634.
point that someone in the position of Mr Belcher, who brings and loses a criminal appeal relating to the interpretation and application of relevant legislation, would be denied the opportunity to bring a subsequent civil proceeding for a declaration of inconsistency because all issues of interpretation would have been resolved in the criminal appeal. Less convincingly she also suggests that such a limitation could create an incentive for a plaintiff to dress an application in the sheep’s clothing of an untenable interpretation argument.
[92] If jurisdiction exists in circumstances where the Court is required to engage in its interpretative function and consequently pursues a Moonen or Hansen analysis, it is difficult to see why jurisdiction should not also be available in a case where the Crown in effect makes no contest that the challenged statutory provision is inconsistent with the NZBORA. If it were otherwise, then the exercise of the jurisdiction could be defeated simply by an acknowledgment in the litigation of the existence of the objectionable inconsistency. Mindful as I am of the comments in the previous cases to which I have referred, in the present case where the challenge on the ground of lack of jurisdiction has not succeeded, I do not consider that the so- called procedural objection justifies the exercise of the strike out jurisdiction.
Second, third and fourth causes of action
[93] My reasons have focussed on the declaration in the first cause of action which I apprehend is the primary form of relief which is sought and which was the principal focus of the argument. While I consider that the subsequent somewhat derivative causes of action are more tenuous than the first, in view of my decision not to strike out the claim for the primary form of relief, I prefer not to explore the others in any detail on the current application. If the proceeding is to progress I consider that it should do so in its entirety.
[94] I am also influenced by the view that to strike out only some claims would in all probability invite appeal at the interlocutory stage which would likely delay the disposal of the substantive proceeding. In view of my conclusion on the first cause of action and bearing in mind that this is an election year, I exercise my discretion to decline any order in relation to the second, third and fourth causes of action.
The proper parties
[95] It remains to deal with what Mr Pike described as an initial problem, namely the identity of an appropriate respondent in this litigation.
[96] With reference to the second respondent he submitted that the pleadings were misconceived as there is no relevant action taken by the Chief Executive of the Department of Corrections consequent upon the 2010 Amendment. The task of removing a name from, or not entering a name on, the Electoral Roll is assigned to the relevant Registrar of Electors. It appears that a prison manager will supply the name and address of the affected person to the Electoral Commission and the effective loss of the right to vote occurs when the relevant Registrar of Electors removes, or does not allow the entry of, the affected person’s name on the Electoral Roll.
[97] Equally misconceived, in Mr Pike’s submission, is the nomination of the
Attorney-General sued on behalf of the Governor General who assented to the 2010
Amendment. While that process is essential to the coming into force of the provision, the Governor General is bound to act on advice of the House and his or her constitutional role is part of the proceedings of Parliament, not a distinct executive act of the Crown.
[98] In their written submissions the applicants accepted that the Chief Executive of the Department of Corrections should be removed as the second respondent. They also agreed to delete any references to the Governor General in the pleading.
[99] I consider that the pleading should be amended to name the Attorney-General as the sole respondent. An amended statement of claim giving effect to the changes which the applicants have agreed to make is to be filed and served within 10 working days of the date of this judgment.
Disposition
[100] The respondents’ application is dismissed. The applicants are entitled to one set of costs on a 2B basis.
Brown J
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