TAYLOR v KEY & ORS [2015] NZHC 722 [16 April 2015]

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2014-404-2657

[2015] NZHC 722

UNDER

the Electoral Act 1993

IN THE MATTER OF

an Election Petition relating to the

Helensville Electoral District

BETWEEN

ARTHUR WILLIAM TAYLOR

Petitioner

AND

JOHN PHILLIP KEY

First Respondent

ELECTORAL COMMISSION

Second Respondent

CHIEF EXECUTIVE OF THE

DEPARTMENT OF CORRECTIONS

Third Respondent

ATTORNEY-GENERAL OF NEW

ZEALAND

Fourth Respondent

Hearing:

27, 28 and 29 January 2015

Court:

Winkelmann, Heath and Venning JJ

Counsel:

A W Taylor, in person, Petitioner

P T Kiely and M King for First Respondent

V L Hardy and D J Perkins for Second, Third and Fourth

Respondents

A S Butler and E J Watt, amicus curiae

Judgment:

16 April 2015

JUDGMENT (NO. 3) OF THE COURT

This judgment was delivered by me on 16 April 2015 at 4.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Contents

Introduction [1]

The statutory framework for an election petition [11]

Standing generally [13]

Is Mr Taylor qualified to vote under s 60? [30]

Does Mr Taylor qualify to be registered in the Helensville electorate

under s 74?

[35]

Is Mr Taylor disqualified from registering as a serving prisoner? [56]

(a) General background [59]

(b) Does the present s 80(1)(d) apply to Mr Taylor? [63]

(c) Does the original s 80(1)(d) apply to Mr Taylor? [66]

(d) The punitive/rehabilitative issue [70]

(e) The transitional issue [79]

What follows from lack of standing? [83]

Conclusion [93]

Costs [94]

Introduction

[1] Mr Arthur Taylor is the petitioner in this election petition. He is an inmate at

Auckland (Paremoremo) Prison, currently serving a sentence of 17 years, six

months’ imprisonment. Paremoremo prison is located within the Helensville

electorate. Mr Taylor challenges the lawfulness of the election for the Helensville

electorate, which occurred as part of a General Election held on Saturday, 20

September 2014. The Rt Hon John Key is the Member of Parliament for

Helensville, the Prime Minister of New Zealand, and the leader of the New Zealand

National Party.

[2] Mr Taylor’s challenge to the lawfulness of the election is brought on several

grounds:

(a) Prisoners were wrongly excluded from voting at the General Election.

Mr Taylor says that the Electoral (Disqualification of Sentenced

Prisoners) Amendment Act 2010 (the Disqualification Act) is invalid

because it purported to amend voter eligibility provisions in s 74 of

the Electoral Act 1993 (the Act), but was passed in the House of

Representatives by a simple majority. Mr Taylor says that the

provisions Parliament amended were entrenched and therefore

required a 75 per cent majority to be passed into law. Other reasons

are also advanced as to why the Disqualification Act is ineffective as a

matter of law. In advancing this argument Mr Taylor acknowledges

that prior to the amendments effected by the Disqualification Act, on

its face s 80(1)(d) of the Act (the original s 80(1)(d)) already applied

to disqualify him from voting. Since 1993 prisoners serving sentences

of at least three years’ imprisonment have been disqualified from

voting. However, Mr Taylor argues that the original s 80(1)(d) should

be read as applying only to prisoners serving the punitive phase of

their sentence, and not those in the rehabilitative phase, where he

places himself.

(b) Even if valid, the present version of s 80(1)(d) (the present s

80(1)(d)), which was enacted through the Disqualification Act does

not apply to remand prisoners, as they are not persons “detained

pursuant to a sentence of imprisonment”. The Electoral Commission

made inadequate provision for remand prisoners at Northland Region

Corrections Facility (commonly referred to as Ngawha) to vote in the

election. Mr Taylor’s challenge encompasses Ngawha prison which is

outside the Helensville electorate because it was common ground that

persons otherwise eligible to vote in the Helensville electorate could

be remanded in custody to that prison.

(c) Mr Key knew and benefited from endorsements and statements of

support published by prominent sporting personalities on polling day.

Mr Taylor alleges that those endorsements amount to an offence under

s 197 of the Act.

(d) Mr Key assisted in the creation of a video which was placed on the

Young Nationals’ Facebook page on the evening prior to polling day,

and subsequently shared by people who visited the site on election

day. Mr Taylor alleges that the publication of the video was a breach

of s 197 of the Act, and Mr Key was a party to that breach.

[3] The last allegation is a recent addition to the petition. In mid-December

Mr Taylor sought leave to amend the petition to add in various allegations against

Mr Key in connection with the Facebook page video. Leave was declined in respect

of an allegation of corrupt practice, but Mr Taylor was given leave to include the

Facebook page video as a particular of the existing allegation of unlawful

endorsements.1 At the same time, we adjourned applications by Mr Taylor seeking

further discovery and that Mr Key answer interrogatories in relation to the Facebook

page video, for later consideration.

[4] Because the petitioner complains of the provision made for remand prisoners

to vote, both the Electoral Commission and the Corrections Department filed

evidence and were represented at the hearing. The allegations in the petition in

connection with remand prisoners were initially far broader in their scope,

encompassing remand prisoners at Ngawha, Paremoremo, Mount Eden Corrections

Facility and the Auckland Region Women’s Corrections Facility. However, after

reviewing the evidence provided by the Electoral Commission and the Department

of Corrections, Mr Taylor narrowed the allegation he advanced at the hearing to one

of inadequate provision for the exercise of remand prisoners’ right to vote at

Ngawha.

[5] All of the grounds advanced by Mr Taylor to make out his claim that the

election was unlawful are resisted. Mr Key denies any knowledge or involvement in

breaches of s 197, if breaches there were. Mr Key and the Crown respondents say

that the Disqualification Act was validly enacted, and has the effect of excluding all

sentenced prisoners from the right to vote. Acknowledging that they are not caught

by the Disqualification Act, the Crown respondents argue that the provision made for

remand prisoners to vote was adequate in all prisons, including Ngawha.

[6] Mr Taylor seeks a variety of remedies, including declarations that the

Helensville election was unlawful and void, and an order that it be re-run. In

addition he asks that we issue a report to Parliament on the validity of the

Disqualification Act, any unlawfulness we find proved, and recommending changes

to provision made for remand prisoners to vote.

1 Taylor v Key [2014] NZHC 3409.

[7] All respondents take as a preliminary point that Mr Taylor has no standing to

bring an election petition for each or any of the following reasons:

(a) He is not a registered voter.2

(b) He is not resident in the Helensville electorate.3

(c) He was disqualified from voting both before and after the enactment

of the Disqualification Act.4

[8] The issue of lack of standing was raised at a relatively late stage in a case

management memorandum dated 28 November 2014. Given the late stage the issue

was raised, the requirement that petitions are dealt with expeditiously and that

resolving the issue of Mr Taylor’s standing requires determinations of matters of

fact, it was decided that the issue should be addressed at the hearing of the petition,

rather than at a separate hearing.

[9] We have concluded that Mr Taylor has no standing to bring an election

petition challenging the Helensville election, a finding that does not turn upon the

validity of the present s 80(1)(d). We therefore do not proceed to consider

Mr Taylor’s challenges to the election. We do not consider we have jurisdiction to

do so.

[10] Mr Taylor represented himself during the course of the hearing. Counsel

appointed to assist the Court, Mr Butler, presented detailed and carefully researched

submissions. We are satisfied that as a consequence of the efforts of Mr Taylor,

counsel assisting, and counsel for the respondents, both sides of the argument on the

critical points were thoroughly explored in the submissions presented to us.

The statutory framework for an election petition

[11] In Payne v Adams the Court summarised the statutory framework for election

petitions to the High Court where the challenge is against the outcome of an election

2 Electoral Act 1993, s 60.

3 Section 74.

4 Section 80(1)(d).

of a Member of Parliament representing an electoral district.5 We adopt the

summary from that decision as follows:

[39] The provisions relating to election petitions are contained in Part 8

of the Electoral Act. An election or return to the House of Representatives

may only be questioned by a petition complaining of “an unlawful election

or unlawful return” presented in accordance with Part 8 (s 229(1)). Where

the petition relates to the return of a Member of Parliament representing an

electoral district, the petition must be presented to the High Court and

determined in accordance with ss 230 – 257 of the Act (s 229(3)).

[40] Eligibility to present an election petition is governed by s 230(1).

The onus of proof is on the petitioner to establish the unlawful element in

question (Peters v Clarkson [2007] NZAR 610 at para [55]). The standard

of proof is the criminal standard of beyond reasonable doubt (Peters v

Clarkson at para [58] endorsing Re Wairarapa Election Petition [1988] 2

NZLR 74 at p 115).

[41] Subject to the provisions of the Act, the Court has jurisdiction to

inquire into and adjudicate on any matter relating to the petition in such

manner as the Court thinks fit (s 236(4)).

[42] Section 240 provides:

240. Real justice to be observed — On the trial of any election

petition –

(a) The Court shall be guided by the substantial merits and

justice of the case without regard to legal forms or

technicalities:

(b) The Court may admit such evidence as in its opinion

may assist it to deal effectively with the case,

notwithstanding that the evidence may not otherwise be

admissible in the High Court.

[43] In terms of s 241, certain irregularities are not to invalidate an

election provided the Court is satisfied that the election was conducted

substantially in compliance with the law as to elections and that the

irregularity did not affect the result of the election. However, where the

Court finds that the elected candidate has been guilty of any corrupt practice

(as defined in the Act), his or her election shall be void (s 237). Similarly

where the Court finds that corrupt or illegal practices have prevailed so

extensively in the election that they may reasonably be supposed to have

affected the result (s 238(1)). The Court may also disallow the votes of any

elector who has voted for a constituency candidate found to be guilty of

bribing, treating or unduly influencing the voter (s 239).

[44] At the conclusion of the trial of an election petition under s 229(3),

the Court must determine whether the member whose election or return is

complained of was duly elected or returned or whether the election was

void. The Court must forthwith provide to the Speaker of the House a

certificate in writing of the Court’s determination (s 243). Where a charge is

5 Payne v Adams [2009] 3 NZLR 834 (HC).

made of any corrupt or illegal practice having been committed at the

election, the Court is also required to provide to the Speaker a certificate and

report under s 244. The Court may also provide a special report to the

Speaker on any other matters arising in the course of the trial under s 245.

All decisions of the Court on an electoral petition are final and conclusive.

They may not be appealed or questioned in any way (s 242).

[12] One clarification is necessary in connection with [40] of this passage. While

the standard of proof where corrupt or illegal practices are alleged is the criminal

standard of beyond reasonable doubt, where the challenge is on other grounds, the

standard of proof may be on the balance of probabilities.6

Standing generally

[13] The consequences of an election petition can be significant to the returned

member and other candidates, and can potentially affect the rights of every voter

within the electorate. It is an area of the law where public interest is paramount.7

For those reasons, Parliament has restricted those persons who may bring an election

petition before the Court. Section 230(1) provides:

An election petition to which section 229(3) of this Act applies may be

presented to the High Court by one or more of the following persons:

(a) A person who voted or had a right to vote at the election:

(b) A person claiming to have had a right to be elected or returned at

the election:

(c) A person alleging himself or herself to have been a constituency

candidate at the election.

[14] As the Court in Payne v Adams observed, “the generous or non-technical

approach to electoral petitions mandated by s 240” does not apply to the standing

issue or the jurisdiction of the Court to entertain a petition.8 That is apparent from

the wording of s 240 itself. Standing is not a legal form or technicality. It is

fundamental to the right to bring the petition.

6 Re Wairarapa Election Petition [1988] 2 NZLR 74 (HC) at 115; and Peters v Clarkson [2007]

NZAR 610 (HC) at [58]. 7 Nair v Teik [1967] 2 AC 31 (PC); Re Wellington Central Election Petition, Shand v Comber

[1973] 2 NZLR 470 (SC) at 477–478. 8 Payne v Adams, above n 5, at [49].

[15] Although Mr Taylor initially relied on both s 230(1)(a) and (1)(b), during

submissions he conceded that he could not bring himself within s 230(1)(b). He

relied solely on s 230(1)(a). Mr Taylor was right to make that concession.

[16] We agree with the conclusion of the Court in Payne v Adams that s 230(1)(b)

will apply generally to a person who, for example, claims that there was an

irregularity at the polls and that they would have succeeded if the irregularity had not

occurred.9 An obvious example is a candidate who was a runner-up or who polled

close to the successful candidate.

[17] Section 230(1)(c) contemplates a challenge by a person who, while they may

have been a candidate at the election, polled so poorly that even if the petition was

successful they would not have been elected or returned at the election but who

nevertheless has a genuine and proper interest in the way the election was conducted.

As the Court in Payne v Adams observed, it may also cover the case of a person

claiming to have been left off the ballot paper in error or to have been wrongly ruled

to be ineligible as a constituency candidate under s 145, for example.10

[18] We return to s 230(1)(a). Mr Taylor did not vote at the election. Whether

Mr Taylor has standing to bring the petition is to be determined by whether he had a

right to vote at the election.

[19] The phrase “right to vote” is not defined in the Act. Three alternative

interpretations of that phrase were argued before us at hearing.

[20] Mr Taylor submitted first that the right to vote referred to in s 230(1)(a) was

the right provided for in s 12 of the New Zealand Bill of Rights Act 1990 (Bill of

Rights). Section 12 provides:

Every New Zealand citizen who is of or over the age of 18 years—

(a) Has the right to vote in genuine periodic elections of members of

the House of Representatives, which elections shall be by equal

suffrage and by secret ballot; and

9 At [50].

10 At [51].

(b) Is qualified for membership of the House of Representatives.

[21] However, the general right in s 12 of the Bill of Rights is subject to the

specific provisions of the Act. The Act contains qualification requirements for

voting in a particular election and in a particular electorate. We consider that it is

this qualified conception of the right to vote that is referred to in s 230(1)(a). Section

230(1) of the Act speaks of a “right to vote at the election”, rather than a right to vote

per se. Election is defined in s 3 as meaning “an election of a member of the House

of Representatives”. Therefore, the right in issue here is the right to vote in the

relevant electoral district to which the challenge relates.

[22] Counsel for Mr Key argued that the right to vote refers to qualification under

s 60 of the Act. The amicus suggested as an interpretation open to the Court that the

right to vote refers to qualification under s 74 of the Act.

[23] Section 60 sets out the requirements that must be met before a person is

qualified to vote in a particular election. It provides:

60 Who may vote

Subject to the provisions of this Act, the following persons, and no

others, shall be qualified to vote at any election in any district,

namely,—

(a) any person whose name lawfully appears on the main roll or

any supplementary roll for the district and who is qualified

to be registered as an elector of the district:

(b) any person—

(i) who is qualified to be registered as an elector of the

district; and

(ii) who is registered as an elector of the district as a

result of having applied for registration as an elector

of the district before polling day:

(c) any person who is qualified to be registered as an elector of

the district, and was at the time of the last preceding election

duly registered as an elector of the district or, where a

change of boundaries has intervened, of some other district

in which his or her then place of residence within the first-

mentioned district was then situated:

(d) any person—

(i) who is qualified to be registered as an elector of the

district; and

(ii) who is registered as an elector of the district as a

result of having applied, since the last preceding

election and before polling day, for registration as an

elector of the district or, where a change of

boundaries has intervened, of some other district in

which that person’s then place of residence within

the first-mentioned district was then situated:

(e) any person who is qualified to be registered as an elector of

the district pursuant to section 74 and who resides on

Campbell Island or Raoul Island or has resided on either of

those Islands at any time in the 1 month before polling day:

(f) any member of the Defence Force who is outside New

Zealand, if he or she is or will be of or over the age of 18

years on polling day, and his or her place of residence

immediately before he or she last left New Zealand is within

the district.

[24] Section 74, on the other hand, sets out the requirements that must be met

before a person is qualified to be registered as an elector in a particular electoral

district. It provides:

74 Qualification of electors

(1) Subject to the provisions of this Act, every adult person is qualified

to be registered as an elector of an electoral district if—

(a) that person is—

(i) a New Zealand citizen; or

(ii) a permanent resident of New Zealand; and

(b) that person has at some time resided continuously in New

Zealand for a period of not less than 1 year; and

(c) that electoral district—

(i) is the last in which that person has continuously

resided for a period equalling or exceeding 1 month;

or

(ii) where that person has never resided continuously in

any one electoral district for a period equalling or

exceeding 1 month, is the electoral district in which

that person resides or has last resided.

…

[25] A s 74 qualification would therefore capture a broader group than a s 60

qualification, as it would mean qualification to register would be enough, whether or

not the person had registered as an elector.

[26] The following passage from Payne v Adams suggests that the right to vote in

s 230 refers to qualification to vote in s 60:

[47] Eligibility to vote depends upon being qualified to vote in the

relevant electoral district under s 60 of the Electoral Act, which in turn

depends on qualification to be registered as an elector of that district.

[27] Mr Butler argued against this conclusion. He submitted that it would be

unjust to consider that the s 230 phrase “right to vote” refers to the s 60 qualification.

If this was the case, a person could be prevented from registering under s 60, and

then have no ability to challenge the validity of the election even if the refusal to

register them was unlawful. In contrast, the provisions in s 74 address the

substantive requirements (citizenship or residence and adulthood) of the eligibility to

vote. He therefore submitted that we should interpret the “right to vote” in s 230 as

referring to qualification as an elector under s 74.

[28] Although Mr Butler accepted that the above passage in Payne v Adams is

against him, he submitted that the Court’s view in that case is obiter. Mr Payne

accepted he did not meet the requirements under s 74 so there was no need for the

Court to make a finding as to the relevance or applicability of s 60.

[29] We do not propose to resolve whether the “right to vote” refers to s 60 or

s 74. For reasons we now address, we consider that on either basis Mr Taylor lacks

standing. That means that in this case the issue is not determinative. Mr Taylor

lacks standing whichever interpretation is adopted. We therefore prefer to leave the

question of whether s 60 or s 74 is the relevant section to a case where that issue is

determinative.

Is Mr Taylor qualified to vote under s 60?

[30] Putting aside the categories of Campbell and Raoul Island residents and

defence force members,11

to be qualified to vote at the election in Helensville in

2014 Mr Taylor has to come within one of s 60(a) to (d).

[31] Mr Taylor must establish that he is qualified to be registered as an elector of

the Helensville electorate12

and also must satisfy the remaining requirements of any

of s 60(a) to (d). The definition of elector does not advance consideration of this

issue. An “elector” is defined as:13

… in relation to any district, means a person registered, or qualified to be

registered, as an elector of that district.

[32] Mr Taylor’s name was not on the Helensville roll nor was he registered as an

elector in the Helensville electorate as a result of having applied for registration as an

elector before polling day. He therefore does not meet the requirements of s 60(a) or

(b). Nor can he satisfy s 60(c) or (d). He was not registered as an elector in the

Helensville District at the 2011 election and has not applied to be registered as an

elector in the Helensville District. Mr Peden, the Chief Electoral Officer and Chief

Executive of the Electoral Commission, has confirmed that Mr Taylor has never been

registered on the Helensville roll.

[33] As Mr Taylor cannot bring himself within s 60, he was not qualified to vote at

the 2014 election. This means that if the “right to vote” referred to in s 230(1)(a)

means qualification under s 60 he would lack standing to bring this petition.

[34] We now move to address the two further issues that need to be determined if

“the right to vote” refers instead to qualification under s 74. Those are whether

Mr Taylor would have been entitled to enrol in the Helensville electorate, and

whether he was disqualified from registering under the terms of s 80(1)(d) of the Act

in either its original or present form.

11

Electoral Act 1993, s 60(e) and (f). 12

Discussed further below at [35]–[55]. 13

Electoral Act 1993, s 3.

Does Mr Taylor qualify to be registered in the Helensville electorate under s 74?

[35] In order to be qualified to register as an elector in the Helensville electorate,

Mr Taylor must be able to bring himself within the criteria set out in s 74.14

[36] Mr Taylor is a New Zealand citizen and has, at some time, resided

continuously in New Zealand for a period of not less than one year. Section

74(1)(c)(ii) does not apply as Mr Taylor has at some stage resided continuously in

one electoral district for a period equalling or exceeding one month. The issue is the

application of s 74(1)(c)(i), which identifies the electoral district that the elector is

qualified to register for.

[37] Section 72 sets out the rules for determining a person’s place of residence.

Residence is to be determined by reference to the facts of the case.15

Mr Taylor says

that he resides within the Helensville electorate. The onus of proof is on Mr Taylor.

[38] The principal evidence as to Mr Taylor’s residence is from Mr Peden and

Mr Taylor himself. Mr Peden’s research into Mr Taylor’s records discloses that on

20 July 2005, Mr Taylor was registered as an elector in respect of a residence at

Paraparaumu within the Otaki general electoral district.16

[39] Otaki was the last electoral district for which Mr Taylor was registered.

However, on 13 October 2006, following receipt of a notice from a prison manager

in accordance with s 81 of the Act, Mr Taylor was removed from the Otaki roll

pursuant to s 98.

[40] Mr Taylor advised counsel he had previously registered as an elector at a

Te Atatu South address within the Te Atatu general electoral district. Mr Peden

confirmed that the Commission’s records disclose that, in or before 1999, a person

with a slightly different date of birth (same day and month but 1959 as opposed to

1956) registered as an elector in respect of the address advised by Mr Taylor as Alan

William Taylor. That name remained on the Te Atatu roll until 17 September 2002.

14

Set out at [24] above. 15

Electoral Act 1993, s 72(1). 16

Now Ōtaki.

During the period from 17 September 2002 to 17 September 2005, the name Alan

William Taylor remained on the dormant Te Atatu roll in accordance with s 109 of

the Act. From 17 September 2005, the name Alan William Taylor was removed from

the dormant Te Atatu roll because it had reached the three-year maximum. As noted,

by this time, Mr Taylor had registered in the Otaki electorate.

[41] There was a suggestion Mr Taylor may also have used the name Michael

Victor Smith. A person with the same date of birth as Mr Taylor was registered as an

elector at a Titirangi address within the Titirangi electorate under that name on 22

March 2001. That address is now within the New Lynn general electoral district.

The name has been registered on either the Titirangi or New Lynn rolls since 22

March 2001. Mr Peden confirms that neither Mr Taylor nor anyone using the names

Alan William Taylor or Michael Victor Smith has sought to register as a voter in the

Helensville electorate.

[42] Mr Taylor says in his affidavit that he would have voted in the 2014 election

in the Helensville electorate where he has been residing since 2004. In his amended

petition he pleads that Auckland Prison, Paremoremo, is located in the Helensville

electorate and that “[he] resided at the Auckland Prison and made his home there for

the purposes of s 72(3) of the Act at the time of the election on 20 September 2014”.

[43] It is accepted that, during the course of a pre-trial telephone conference on 28

November 2014 (and confirmed during the course of the hearing itself), Mr Taylor

has said that he intends to live in the Helensville electorate on release. Specifically

he intends to reside in Riverhead. He has discussed that with an associate although

there is no formal arrangement to that effect in place. While the formal evidence

before the Court is limited, counsel for the respondents were in agreement that we

could accept the matters pleaded by Mr Taylor and his statement to the Court during

submissions as evidence of his view of his residence, and of his future intention.

[44] Mr Taylor’s argument that he resides in the Helensville electorate is based on

the proposition that he has made the prison his home. Section 72(3) provides:

A person resides at the place where that person chooses to make his or her

home by reason of family or personal relations, or for other domestic or

personal reasons.

[45] The legislative history of s 72(3) indicates that an equivalent section was first

inserted following the decision in Re Wairarapa Election Petition as an amendment

to s 37 of the Electoral Act 1956.17

Section 72(3) and its equivalent under the 1956

Act replaced the former objective test for residency. Previously s 37 of the Electoral

Act 1956 had provided:

If a person has two or more usual places of abode he shall be deemed to

reside in the place in which he spends the greatest part of his time.

[46] In Re Wairarapa Election Petition the Court held that the test was objective

and applied it by mathematically counting the number of days resided in each

location. The Electoral Law Committee of the 42nd Parliament considered that this

test confused voters, particularly those who were students studying away from home

or those who commuted for the working week. On that basis the Committee

recommended the subjective test, which determined a voter’s electorate based on

personal factors. The subjective test was designed to align with common-sense

notions of home or centre of gravity.18

[47] However, s 72 does not permit a totally open choice as to where a person

wishes to be registered to vote. The place of residence is still to be determined by

reference to the facts of a particular case. Mr Taylor’s expressed intention as to

where he will live in the future is not relevant except to the extent it would support

his adoption of Helensville as his home at present. Mr Taylor is not able to point to a

personal reason as to why he has chosen the Helensville electorate as his electorate

other than the fact he is imprisoned there. Self-evidently Mr Taylor did not initially

choose to go to Auckland Prison and to make that his residence. There are no factors

other than his imprisonment – such as having resided in the Helensville electorate

prior to imprisonment or his family having moved to live in the electorate whilst he

was incarcerated, for example – to support his adoption of Helensville as his

residence.

17

Re Wairarapa Election Petition, above n 6. See Electoral Amendment Act 1989, s 2. 18

Electoral Law Committee First Interim Report of the Electoral Law Committee Inquiry into the

1987 General Election (8 December 1988).

[48] Section 72(5) provides:

A person who is detained in any prison … by virtue of any enactment shall

not, by reason only of that detention, be treated for the purpose of

subsection (3) of this section as residing there.

[49] Mr Butler submitted that some meaning must be given to the use of “only” in

this context. He submitted that Parliament could have simply provided “a person

who is detained in any prison … shall not by reason of that detention be treated for

the purpose of subsection (3)” as residing there.

[50] Section 72(5) must be seen in its legislative context. When enacted, prisoners

who were subject to sentences of less than three years (short-term sentences) still

maintained the right to vote. For them, where they resided was important. The

legislative intent is that the fact of incarceration in a district may be taken into

account as part of the evidence of residence where there is other evidence linking a

prisoner to that district, such as the examples given above, but will be put to one side

where it is the only evidence of residence. As noted, s 72(3) incorporates the

concept of a choice of residence. There are good grounds to argue that a prisoner

cannot choose their prison as their residence. As Ms Hardy submitted, the very

essence of imprisonment is the involuntary separation from a community and the

subjection to State direction. It is the antithesis of the choice referred to in s 72(3).

Mr Taylor has no real choice about living at the prison. He is in the legal custody of

the Chief Executive of Corrections and may be transferred from the prison at any

time.19

On release from prison, Mr Taylor has no choice about the matter. He would

be unable to return to the prison unless again subject to a warrant of imprisonment.

[51] A number of other considerations support the rejection of a prisoner being

able to choose the prison as their residence:

It avoids the difficulty of prisoners (if otherwise eligible to vote) being

required to re-register in different electoral districts each time they are

shifted.

19

Corrections Act 2004, s 38(1).

It avoids the disproportionate concentration of prisoner voting in districts in

which prisoners are located.

It provides certainty and predictability.

Subject to the disqualification issue, it would enable prisoners to vote in the

electorate they last had a connection with.

It is broadly consistent with analogous Australian and Canadian provisions.20

[52] While there is a counter argument that, in cases of lengthy incarceration,

some prisoners may become so institutionalised they come to identify with the

community in which the prison is located and while we note the relevant UK

provision permits a degree of flexibility as to where remand prisoners register, we do

not consider that in this case Mr Taylor has satisfied the onus on him to establish that

he resides in the Helensville electoral district.21

[53] Mr Taylor also argues he has permanently given up his residence in

Paraparaumu so that if he is not resident in Helensville, he effectively has no

residence under the Act, referring to s 72(7). Mr Butler also suggested that in that

situation there would be a lacuna concerning residence.

[54] However, the answer is that s 74(1) is directed at identifying the electorate in

which a person may vote. The focus under s 74(1)(c)(i) is on where the elector last

continually resided for one month. Even if Mr Taylor can be said not to reside at

either his former home (as he has given it up) or at the prison, he would still (subject

to disqualification)22

be entitled to vote in the electoral district where he last

continuously resided for one month. That was within the Otaki electoral district.

20

Commonwealth Electoral Act 1918 (Cth), s 96A; and Canada Elections Act SC 2000 c 9,

s 251(2). 21

Representation of the People Act 1983 (UK), s 7A(2) and (5). 22

Discussed further below at [56]–[82].

[55] For the above reasons Mr Taylor fails to meet the qualification under

s 74(1)(c). He was not qualified to be registered as an elector of the Helensville

electoral district.

Is Mr Taylor disqualified from registering as a serving prisoner?

[56] Finally, even if Mr Taylor could overcome the s 60 and s 74 hurdles, he still

faces the prohibition in s 80(1)(d). If the Act operates to prevent Mr Taylor from

registering as an elector because he is a prisoner, this is another reason he does not

have standing under s 230.

[57] Section 4 of the Disqualification Act inserted the present version of s 80(1)(d)

into the Act. It reads:

80 Disqualifications for registration

(1) The following persons are disqualified for registration as electors:

…

(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: ….

[58] The Disqualification Act came into force on 16 December 2010.23

Prior to

that date, the original s 80(1)(d) applied. This provided:24

(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 prison:

23

Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, s 2. 24

When the original s 80(1)(d) was first enacted it contained the phrase “penal institution” instead

of the word “prison”; aside from that amendment made in 2005, the provision set out here is as

enacted.

(a) General background

[59] Mr Taylor contends that he was entitled to vote at the 2014 General Election,

notwithstanding his status as a serving prisoner, for the following reasons:

(a) First, he was not excluded from voting by the present s 80(1)(d)

because the Disqualification Act was invalidly enacted.25

(b) Second, if the present s 80(1)(d) were invalid, the original s 80(1)(d),

under which any serving prisoner detained under a sentence of

imprisonment of three years or more was disqualified from voting,

does not apply to him.

[60] Disenfranchisement of prisoners has a long history, but by no means one with

a consistent application. Its origins can be traced back to the concept of “civil death”

which was prominent in both ancient Greece and Rome as a mark of “infamy”.26

That concept applied to those guilty of “heinous and treasonous crimes involving

moral depravity, and resulted in forfeiture of rights such as voting and holding

certain public offices”.27

[61] The first form of prisoner disqualification in New Zealand came about

through the New Zealand Constitution Act 1852 (Imp) and, except for a short period

between 1975 and 1977 when prisoner voting rights were completely restored, has

continued in force in various guises since that time.28

25

See [2](a) above. Arguments were also advanced based on inconsistencies with the New

Zealand Bill of Rights Act 1990, the Human Rights Act 1993, the Treaty of Waitangi and various

international covenants, but none of those could operate to invalidate the Disqualification Act. 26

Sometimes called “civic death”: see, for example, Hirst v United Kingdom (No 2) (2006) 42

EHRR 41 (Grand Chamber, ECHR) at [22], [53] and [O-II3] . 27

Greg Robins “The Rights of Prisoners to Vote: A Review of Prisoner Disenfranchisement in New

Zealand” (2006) 4 NZJPIL 165 at 166. See also, Mirjan R Damaska “Adverse Legal

Consequences of Conviction and Their Removal: A Comparative Study” (1968) 59(3) J Crim L,

C & PS 347. 28

In sequence: New Zealand Constitution Act 1852 (Imp) 15 & 16 Vict, s 8; Qualification of

Electors Act 1879 (Imp) 43 Vict, s 2(4); Electoral Act 1905 (Imp) 5 Edw VII, s 29(1); Electoral

Act 1956, s 42(1)(b), Electoral Amendment Act 1975, s 18(2); Electoral Amendment Act 1977, s

5; Electoral Act 1993, s 80(1)(d); Electoral (Disqualification of Sentenced Prisoners)

Amendment Act 2010, s 4 (inserting the present s 80(1)(d) into the Act).

[62] When the original s 80(1)(d) was passed, there was a reconsideration of the

question of prisoner disenfranchisement, in light of the enactment of the Bill of

Rights. In promoting a change that had the effect of restricting the category of

prisoners who were disqualified to those serving sentences of three years or more,

the Department of Justice cited two sources. 29

The first was a recommendation of

the Royal Commission on the Electoral System.30

The second was an opinion from

then Solicitor-General, Mr John McGrath QC, from whom the Department of Justice

had sought an opinion about whether absolute prisoner disenfranchisement, in the

form in which it stood under the Electoral Act 1956, was a justified limitation on the

right to vote, in light of s 12(a) of the Bill of Rights.31

Both the Royal Commission

and the Solicitor-General favoured a three-year imprisonment limit, to take account

of the triennial election cycle and to minimise the problem of arbitrary application.32

(b) Does the present s 80(1)(d) apply to Mr Taylor?

[63] If Mr Taylor were caught by the present s 80(1)(d), he would have no “right

to vote”, as required by s 230(1)(a) of the Act,33

and therefore no standing to bring

the petition. Of course, Mr Taylor challenges the validity of that legislation, and that

challenge is one of the grounds of the petition.

[64] Having considered Mr Taylor’s criminal history sheet in more detail since the

hearing, we consider that the Disqualification Act did not apply to Mr Taylor. He

was not, as at the time of the 2014 General Election, being detained in Auckland

Prison under a sentence of imprisonment imposed after the date that the

Disqualification Act came into force. On Mr Taylor’s own evidence, he is serving a

29

Department of Justice Electoral Reform Bill: Report of the Department of Justice (Department

of Justice, Wellington, 3 May 1993) at 57. 30

Royal Commission on the Electoral System Report of the Royal Commission on the Electoral

System: Towards a Better Democracy (Government Printer, Wellington, December 1986) at

[9.21] and recommendation 42. 31

J J McGrath QC, Solicitor-General to W A Moore, Secretary for Justice “Rights of Prisoners to

Vote: Bill of Rights” (17 November 1992) Letter at [26], cited in Greg Robins “The Rights of

Prisoners to Vote: A Review of Prisoner Disenfranchisement in New Zealand”, above n 24, at

170. A summary of the opinion can be found in Department of Justice, Electoral Reform Bill:

Report of the Department of Justice, above n 26) at 57. The question of justifiable limitation

was considered by reference to s 5 of the New Zealand Bill of Rights Act 1990. 32

The notion of “arbitrary application” reflects the “proportionality” approach evidenced in the

decision of the European Court of Human Rights in Hirst v United Kingdom (No 2) above n 26,

at [45], [62], [68] and [73]. See also Mathiew-Mohin v Belguim (1988) 10 EHRR 1 (ECHR) at

[52]. 33

Set out at [13] above.

sentence of 17 years, six months’ imprisonment,34

the result of an accumulation of

sentences imposed in the period between 2004 and 2009. That sentence ends in

2021. The only sentence actually imposed after the Disqualification Act came into

force was on 27 April 2011, when Mr Taylor received a sentence of five months’

imprisonment on a charge of intentional damage.

[65] Mr Taylor’s criminal conviction history does not record the sentence as a

cumulative sentence. We therefore proceed on the basis it ran concurrently with his

existing sentences.35

As such, it had been served in full before the September 2014

General Election. At the time of the election Mr Taylor was not therefore detained

under a sentence of imprisonment imposed after the Disqualification Act came into

force, and the present s 80(1)(d) does not apply to him. That being so, it is

unnecessary for us to consider whether the Disqualification Act was validly enacted.

(c) Does the original s 80(1)(d) apply to Mr Taylor?

[66] It is common ground that Mr Taylor was subject to a sentence of

imprisonment of more than three years while the original s 80(1)(d) was in force.

Mr Taylor contends that there are two answers to the proposition that he was, in any

event, prohibited from voting in the 2014 General Election by the original

s 80(1)(d).36

[67] The first (the punitive/rehabilitative issue) is that, when read in conjunction

with s 12(a) of the Bill of Rights, the prohibition on voting set out in the original

s 80(1)(d) applied only to those prisoners who were, at the time of any particular

election, serving the “punitive” part of a sentence of imprisonment.

[68] The second (the transitional issue) raises a question about the effect of a

transitional provision, s 6(a) of the Disqualification Act. Mr Taylor argues that

although the Disqualification Act was invalid to the extent that it purported to bar a

34

In his affidavits in support of the petition, Mr Taylor has said that the sentence he is currently

serving was both one of 19 years and 17 years six months. It appears (and we accept for present

purposes) that Mr Taylor is saying that, having regard to time spent on remand, there was a

sentence of 17 years six months remaining to be served from December 2004. 35

See Parole Act, s 76 and Harvey v General Manager of Rimutaka Prison HC Wellington CIV-

2009-485-1748, 7 September 2009 at [10]. 36

Set out at [58] above.

person sentenced to imprisonment from voting it was valid to the extent that it

repealed the original s 80(1)(d). That was because a seventy five per cent majority

was not required to reinstate prisoners’ right to vote.

[69] We deal with each of those points in turn.

(d) The punitive/rehabilitative issue

[70] The Bill of Rights came into force in late September 1990. At that time, all

sentenced prisoners were disqualified from voting, as a result of the reinstatement of

that position in 1977.37

We have previously referred to s 12(a) of the Bill of Rights.

For convenience, we repeat it:

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; ….

[71] The original s 80(1)(d) limited the prohibition on prisoner voting to those

who were detained in a penal institution under a sentence of imprisonment of three

years or more. That was done following advice from the Solicitor-General and a

recommendation from the Royal Commission on the Electoral System. The

approach necessarily took into account the need for any ban to be “demonstrably

justified in a free and democratic society”.38

[72] Mr Taylor submits that the original s 80(1)(d) is capable of being interpreted

so as to exclude from its operation prisoners who have served the “punitive” part of

their sentence but remain in custody pending consideration of their cases by the

Parole Board.

37

See Electoral Amendment Act 1977, s 5. 38

New Zealand Bill of Rights Act 1990, s 5. See also [62] above.

[73] Mr Taylor draws support from the way in which Simon France J

characterised different parts of a sentence of imprisonment, in A v New Zealand

Parole Board.39

The Judge said:

[3] A sentence can be viewed as having two components:

a) the penal or punishment part, which represents the amount

of time that must be served as “just deserts” for the

offending. Once an offender has served this part of a

sentence he or she becomes “parole eligible”; whether they

are released is up to the Parole Board;

b) the balance of the sentence, which represents the period

from parole eligibility date to the last day of the sentence.

This portion might be served if it is assessed by the Parole

Board to be inappropriate, or unsafe, to release the prisoner

following completion of the punishment component.

[74] Mr Taylor suggests that the same distinction was drawn by the Grand

Chamber of the European Court of Human Rights in Hirst v United Kingdom

(No 2).40

However, the only reference to that distinction is in a cited portion of the

Chamber judgment, in which it had found that the “blanket ban imposed on all

convicted prisoners … was arbitrary in its effects and could no longer be said to

serve the aim of punishing [Mr Hirst] once his tariff (that period representing

retribution and deterrence) had expired”.41

[75] Mr Taylor submits that the original s 80(1)(d) is capable of a rights-based

interpretation which would differentiate a prisoner serving the penal portion of his or

her sentence from one who is in the “rehabilitative” part, and subject to release on

licence by the Parole Board. He contends that such an interpretation could

legitimately be achieved through the operation of s 6 of the Bill of Rights:

6 Interpretation consistent with Bill of Rights to be preferred

Wherever an enactment can be given a meaning that is consistent

with the rights and freedoms contained in this Bill of Rights, that

meaning shall be preferred to any other meaning.

[76] We consider that the distinction drawn by Simon France J in A v New

Zealand Parole Board was designed to do no more than to provide convenient labels

39

A v New Zealand Parole Board [2008] NZAR 703 (HC) at [3]. 40

Hirst v United Kingdom, above n 26. 41

At [76].

for the periods before and after an offender became eligible for parole. That is clear

from the context in which he was considering the time at which the offender was

eligible to apply for parole.42

We see no reason to adopt that distinction for the

different purposes to which the original s 80(1)(d) is directed.

[77] There is no basis for interpreting the original s 80(1)(d) as Mr Taylor

contends. The New Zealand Parliament has never drawn a distinction between

prisoners serving the penal and rehabilitative parts of a sentence. Rather, in the

context of prisoner voting rights, there has been a consistent distinction drawn

between those who are detained in prison after conviction and those who are not.

Neither a person who is subject to a custodial remand nor one who has been released

into the community on parole is disqualified from voting by reason of the original

s 80(1)(d). Such people are not “being detained in a prison pursuant to a sentence of

imprisonment” at the relevant time. The present s 80(1)(d) works in the same way.

The disqualified person must be “detained in a prison pursuant to a sentence of

imprisonment”.43

[78] In our view, as a matter of interpretation, there is no room for the distinction

drawn by Mr Taylor.

(e) The transitional issue

[79] Mr Taylor’s next point is that he is not subject to the original s 80(1)(d)

because it has been repealed. Repeal was effected by s 4 of the Disqualification Act.

However, Mr Taylor’s point is met by the transitional provisions of the

Disqualification Act.

[80] The transitional provisions were enacted “to avoid doubt” as to the status of

prisoners disqualified from voting immediately before it came into force. Section

6(a) of the Disqualification Act provided that a person who was disqualified from

registration as an elector immediately before the commencement of the

Disqualification Act continued “to be disqualified for registration as an elector as if

[the Disqualification] Act had not been enacted”. Section 6(b) was the opposite side

42

A v New Zealand Parole Board, above n 39, at [6]–[8]. 43

The original s 80(1)(d) is set out at [58] above; the present s 80(1)(d) is set out at [57] above.

of the same coin; it provided that serving prisoners who were not disqualified for

registration as an elector immediately before the Disqualification Act came into force

were not disqualified once it came into force.44

[81] Mr Taylor’s argument is answered by s 6(a) of the Disqualification Act. That

section was designed to ensure that prisoners serving sentences of imprisonment as a

consequence of sentences imposed before 16 December 2010, and who were

disqualified under the original s 80(1)(d), were not captured by the wider prohibition

contained in the present s 80(1)(d). Instead, such a person remains disqualified on

the same basis that he or she was already disqualified.

[82] On any analysis Mr Taylor’s situation remains governed by the original

s 80(1)(d), a provision that we have held applied to prevent him from voting in the

2014 General Election.

What follows from lack of standing?

[83] We have concluded that Mr Taylor did not have standing under s 230 to bring

the petition as he did not have a right to vote at the election for all or any of the

following reasons:

(a) He was not registered on the Helensville roll.

(b) He was not entitled to be registered as an elector in Helensville as he

has not and does not reside in that electorate for electoral purposes.

(c) Even if the present s 80(1)(d) were invalid, as Mr Taylor alleges, he

was nevertheless disqualified from voting by the provisions of the

original s 80(1)(d), which continued to apply to him by reason of s

6(a) of the Disqualification Act.

44

Section 6(c) of the Disqualification Act makes it clear that s 4 (which enacted the new form of

s 80(1)(d) of the Act) did not override s 17 of the Interpretation Act 1999. Section 17 deals with

the general effect of repeal of any enactment. There was no suggestion that application of s 17

could affect the result of Mr Taylor’s petition.

[84] The scheme of the legislation is that only those with standing may bring

election petitions. Section 229(1) provides that:

No election and no return to the House of Representatives shall be

questioned except by a petition complaining of an unlawful election or

unlawful return … presented in accordance with this Part.

[85] Also relevant is s 229(3) which provides:

An election petition relating to the return of a member of Parliament

representing an electoral district or the failure to present a return at an

election for a member of Parliament representing an electoral district shall be

presented to the High Court and determined in accordance with sections 230

to 257.

[86] And finally the preamble to s 230, already referred to, which defines those

categories of person who may present an election petition to which s 229(3) applies.

As we have found, Mr Taylor does not fall within any of those categories.

[87] Mr Taylor submitted that notwithstanding these provisions we should proceed

to consider the substantive merits of the petition. Mr Butler argued that we are at the

conclusion of a trial of an election petition, the petition not having been struck out

for want of standing prior to trial. He submits that being so, even if we decline to

consider the merits we should issue a certificate in accordance with s 243 and

perhaps a special report under s 245. Those sections provide:

243 Certificate of court as to result of election

At the conclusion of the trial of an election petition to which section 229(3)

applies, the court shall determine whether the member whose election or

return is complained of, or any and what other person, was duly elected or

returned, or whether the election was void, and shall forthwith certify in

writing the determination to the Speaker, and the determination so certified

shall be final to all intents and purposes.

245 Special report

At the same time as the court gives its certificate at the conclusion of the trial

of an election petition to which section 229(3) applies, the court may make a

special report to the Speaker as to any matters arising in the course of the

trial an account of which, in the judgment of the court, ought to be submitted

to the House of Representatives

[88] We are satisfied that we should not consider the merits of the challenge, issue

a certificate under s 243 or a report under s 245. This is because it would be wrong

for us to consider or to conclude that a person was or was not duly elected on the

basis of a petition brought by a person who did not have standing. That is exactly

what s 229(1) is directed to ensure – that it is only those who have a legitimate

interest (those within the s 230(1) categories) who may question an election. If the

election cannot be questioned in the proceeding, the Court cannot determine that the

person has or has not been duly elected, or issue a certificate to that effect. The

special report procedure applies only on the issue of such a certificate.

[89] Mr Taylor submitted that s 240 provides a pathway for the Court to address

the substance of his challenge even if we find that he has no standing. Section 240

provides:

240 Real justice to be observed

On the trial of any election petition,—

(a) the court shall be guided by the substantial merits and justice of the

case without regard to legal forms or technicalities:

(b) the court may admit such evidence as in its opinion may assist it to

deal effectively with the case, notwithstanding that the evidence may

not otherwise be admissible in the High Court.

[90] By its terms s 240 applies only where the Court has before it an election

petition for the purposes of s 229(1) and (3), hence the words “On the trial of any

election petition”. It is a provision designed to empower the Court in that

circumstance to overlook the form of the pleading and legal technicalities to achieve

real justice. It cannot cure a lack of standing.

[91] It is true that in Payne v Adams, although the Court found that Mr Payne was

not eligible to bring the election petition, it nevertheless proceeded to consider his

arguments. We note however that when deciding to embark upon a consideration of

the merits of the petition, the Court did not address the jurisdictional issue we have

identified, saying simply that it did so “in deference to Mr Payne’s arguments”.45

[92] In declining to proceed further to consider the merits of Mr Taylor’s

challenge, we are mindful that to do so in this case without a proper legal basis might

45

Payne v Adams, above n 5, at [52].

be ill advised. The merits of most of the issues raised by Mr Taylor are under active

consideration elsewhere. Mr Taylor has concurrent judicial review proceedings on

foot in connection with the validity of the Disqualification Act, and there are

proceedings before the Waitangi Tribunal which raise related issues.46

We have also

been informed that the Electoral Commission has lodged a complaint with the police

in connection with the celebrity endorsements and statements of support for Mr Key

on Election Day, and in connection with the Young Nationals’ Facebook page.

Conclusion

[93] For the reasons stated, we have concluded that Mr Taylor lacks standing to

bring an election petition concerning the Helensville electorate. As a result of that

conclusion, all of Mr Taylor’s various applications for declarations and orders fall

away, as do the outstanding interlocutory applications for discovery and that Mr Key

answer interrogatories. Given the lack of standing, the Court will not issue a

certificate as to the result of the election.

Costs

[94] We reserve the question of costs. The Crown respondents have requested an

opportunity to file a memorandum as to costs.

[95] Amicus’ costs are to be met out of public funds. We note that Mr Butler was

assisted at the hearing by junior counsel. If he seeks costs in respect of junior

counsel he should file a memorandum setting out the role played by junior counsel

and the extent of costs sought.

[96] The parties and Mr Butler may file and serve submissions as to costs in

accordance with the following timetable:

(a) The respondents and the amicus, within three weeks of the date of this

judgment.

46

Taylor v Attorney-General CIV-2013-404-4141; Taylor v Attorney-General CIV-2014-404-2101;

and Wai 2472.

(b) If Mr Taylor wishes to respond, within three weeks from the date that

the respondents file their submissions.