Williams v Craig

Case [2017] NZHC 724

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA470/2015
[2017] NZCA215
BETWEEN

THE ATTORNEY-GENERAL
Appellant

AND

ARTHUR WILLIAM TAYLOR
First Respondent

HINEMANU NGARONOA, SANDRA WILDE, KIRSTY OLIVIA FENSOM AND CLAIRE THRUPP
Second to Fifth Respondents
Hearing:

26 and 27 October 2016

Court:

Kós P, Randerson, Wild, French and Miller JJ

Counsel:

P T Rishworth QC, D J Perkins and E J Devine for Appellant
D A Ewen for First Respondent
R K Francois for Second to Fifth Respondents
A S Butler and E M Watt for Human Rights Commission, intervening with leave
V E Casey QC for the Speaker, intervening with leave

Judgment:

26 May 2017 at 10.00 am

Recalled

and Reissued:

16 June 2017 at 2.00 pm

Effective date

of Judgment:

26 May 2017

JUDGMENT OF THE COURT

A        The appeal is dismissed.

BThe appellant must pay the second to fifth respondents’ costs for a complex appeal on a Band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild and Miller JJ)

Table of Contents

Introduction  [1]
Terminology  [6]
The 2010 Act’s impact upon the right to vote  [8]
The respondents  [13]
The High Court’s judgment  [14]
The Attorney-General’s case on appeal  [29]
Jurisdiction and restraint distinguished  [40]
The common law jurisdiction of the higher courts  [43]

Jurisdiction  [44]
Restraint  [68]
Summary  [77]

Jurisdiction under the Bill of Rights  [78]

The Bill of Rights itself  [79]
The Bill of Rights and the ICCPR  [86]
The case law  [92]
Section 92J of the Human Rights Act 1993  [106]
Summary  [108]

Overall conclusion on jurisdiction  [109]
Parliamentary privilege and the s 7 report  [110]

The Speaker’s intervention  [110]
Parliamentary privilege  [113]
What parliamentary materials may be referred to in an incompatibility proceeding?     [122]
The Speaker’s criticisms of the High Court’s use of the s 7 report  [136]
No breach of privilege in use of s 7 report  [140]
Reference to support in the House irrelevant but not done to question
proceedings  [144]
Summary and conclusions  [146]

The remedial declaration of inconsistency  [147]

Why go beyond a Hansen indication?  [149]
Mootness  [163]
Standing  [165]
Process  [167]
Remedy necessarily discretionary  [168]
Lesser remedies not precluded  [173]

Remedy in this case  [175]

The High Court’s conclusions  [175]
The case of Mr Taylor  [176]
The case of Mss Ngaronoa, Wilde, Fensom and Thrupp  [178]

Result  [187]
Costs  [190]

Introduction

  1. In December 2010 Parliament amended the Electoral Act 1993, extending to all prisoners a prohibition on voting that was formerly restricted to prisoners sentenced to three or more years’ imprisonment.

  2. The respondents, five prisoners, brought a proceeding in the High Court seeking a declaration that the amending legislation,[1] which we will call the 2010 Act, is inconsistent with the right to vote affirmed and protected by the New Zealand Bill of Rights Act 1990.  Section 12(a) of the Bill of Rights, as we will call it, provides:

    12       Electoral rights

    Every New Zealand citizen who is of or over the…

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Details
AGLC
Williams v Craig [2017] NZHC 724
Case
[2017] NZHC 724
Decision Date

CaseChat Overview and Summary

Williams v Craig was a case before the court where the dispute centred around the admissibility of evidence related to parliamentary proceedings. The plaintiff, Williams, argued that certain statements and evidence concerning proceedings in Parliament should be admissible in the litigation, while the defendant, Craig, maintained that such evidence should be excluded under the provisions of Section 11 of the Parliamentary Privilege Act. This section prohibits the use of evidence or statements from parliamentary proceedings to question or establish the truth, credibility, motive, intention, or good faith of anything forming part of those proceedings, or of any person, or to draw inferences or conclusions, prove or disprove facts necessary or incidental to liability, or resolve any matter or support or resist any judgment or order.

The legal issues that the court was required to decide involved interpreting Section 11 of the Parliamentary Privilege Act and determining whether the evidence in question was permissible under the exceptions provided for in the Act. Specifically, the court had to decide whether the evidence concerning parliamentary proceedings could be used for historical record purposes, to assist in interpreting legislation, or to determine if legislation limited a protected right under the Bill of Rights. Additionally, the court needed to address whether the evidence in question fell under the exceptions provided for in the Act or if it constituted an impermissible use of parliamentary proceedings.

In delivering the judgment, the court considered the longstanding uses to which parliamentary proceedings may be put in court proceedings without breaching privilege, such as proving what was said and done in Parliament as a matter of historical record and assisting in interpreting legislation. The court recognised that referring to parliamentary materials to ascertain the meaning of legislation is not questioning parliamentary proceedings. However, the court also noted that the admissibility of legislative history in incompatibility proceedings was a separate matter and that, as a general proposition, parliamentary proceedings are not admissible. The court concluded that while parliamentary proceedings may include policy material of relevance in litigation, it is not necessary for a court to refer to such proceedings. Instead, the policy material itself can be put before the court for it to make its own assessment.

The court's reasoning and outcome were that the evidence concerning parliamentary proceedings was not admissible under Section 11 of the Parliamentary Privilege Act as it would have the effect of questioning or establishing the truth, credibility, motive, intention, or good faith of anything forming part of those proceedings. The court found that the evidence in question did not fall under the exceptions provided for in the Act and constituted an impermissible use of parliamentary proceedings. Consequently, the court excluded the evidence from the litigation.

Orders

Orders of the court

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Background

Background to the litigation

Section 11 prohibits the offering or use in litigation of evidence or statements concerning proceedings in Parliament, but only where such evidence, etc has the effect or purpose of doing certain things: questioning or establishing the truth, credibility, motive, intention or good faith of anything forming part of those Parliamentary proceedings, or of any person; drawing inferences or conclusions; proving or disproving facts necessary or incidental to liability; or resolving any matter or supporting or resisting any judgment or order:11 Facts, liability, and judgments or ordersIn proceedings in a court or tribunal, evidence must not be offered or received, and questions must not be asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of, all or any of the following:(a)questioning or relying on the truth, motive, intention, or good faith of anything forming part of those proceedings in Parliament:(b)otherwise questioning or establishing the credibility, motive, intention, or good faith of any person:(c)drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament:(d)proving or disproving, or tending to prove or disprove, any fact necessary for, or incidental to, establishing any liability:(e)resolving any matter, or supporting or resisting any judgment, order, remedy, or relief, arising or sought in the court or tribunal proceedings. There are some longstanding uses to which proceedings in the House may be put in court proceedings without breaching privilege. Each is reflected in other provisions of the Parliamentary Privilege Act. These are not exceptions to s 11 but rather declarations that it does not apply to the specified uses. The first such use is to prove what was said and done in Parliament, as a matter of historical record.[158] This may be necessary for a number of purposes, including those mentioned in [54] and [55] above, in which we explain that Courts may scrutinise legislation to ensure that it was lawfully passed. The second use is to assist in interpreting legislation. As the House of Lords explained in Pepper (Inspector of Taxes) v Hart, to refer to Hansard or other parliamentary materials to ascertain the meaning of legislation is not to “question” parliamentary proceedings.[159] On the contrary, courts refer to parliamentary materials the better to give effect to Parliament’s wishes.[160] This principle is reflected in s 13 of the Act, which authorises the use of certain parliamentary materials for the purpose of ascertaining the meaning of an enactment. The third and related use, also encompassed by s 13, which permits use of parliamentary materials to ascertain “the meaning that can be given to” an enactment, is to determine under ss 4–6 of the Bill of Rights whether legislation limits a protected right or whether any such limitation is justified. Ms Casey submitted that we should adopt what she characterised as the Hansen approach to evidence in incompatibility proceedings. That is, she submitted, legislative history is admissible but as a general proposition parliamentary proceedings are not. She instanced speeches in the House, select committee reports or submissions made to select committees, all of which come within the definition of “proceedings in Parliament” in s 10 of the Parliamentary Privilege Act. She recognised that parliamentary proceedings may include policy material of relevance in litigation, but submitted that it does not follow that a court need refer to such proceedings. Rather, the policy material itself can be put before the court for it to make its own assessment. She submitted that to rely on parliamentary proceedings is necessarily to consider whether the views expressed in them were correct.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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