Taylor v Attorney-General NZHC 1706 is a New Zealand High Court judgment which made a formal declaration that a statute that prohibited prisoners from voting is inconsistent with the New Zealand Bill of Rights Act 1990. The action was brought by Arthur Taylor, a high-profile prison inmate. This was the first time a court had recognised that a formal declaration of inconsistency is an available remedy for statutory breaches of the Bill of Rights. Section 5 of the Bill of Rights Act states, "Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."New Zealand Bill of Rights Act 1990, section 5. In his decision, Justice Heath declared that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 which stripped all voting rights in general elections from prisoners was an unjustified limitation on the right to vote contained in s 12 of the Bill of Rights. The Court of Appeal upheld this decision after the Attorney-General appealed the jurisdiction of the courts to make declarations of inconsistency.Attorney-General v Taylor NZCA 215.
Background Justice Heath summarised the background to the legal challenge being, "As a result of an amendment made to the Electoral Act 1993 (the 1993 Act) in 2010, all prisoners incarcerated as a result of a sentence imposed after 16 December 2010 are barred from voting in a General Election."Taylor v Attorney-General NZHC 1706 at . In response to disenfranchisement, five serving prisoners including career criminal Arthur Taylor "sought a formal declaration from this Court that the prohibition is inconsistent with s 12(a) of the Bill of Rights". Mr Taylor was not himself affected by the Amendment Act because he was serving a term exceeding three years’ imprisonment, and had therefore already lost his right to vote; however the other four applicants came within the ambit of the Act, and no question was raised about Taylor's standing.Taylor v Attorney General NZHC 1706 at . The Attorney-General in his 2010 report on the law, mandated by section 7 of the Bill of Rights Act requiring that any inconsistencies with a Bill of Rights right be brought to the attention of Parliament, had concluded, "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".Taylor v Attorney-General NZHC 1706 at .
Prior to the review proceeding to a substantive hearing the Attorney-General had tried unsuccessfully to have the challenge struck out on the grounds courts had no jurisdiction over this matter and that any relief given "would breach the fundament principle of comity applying to the relationship between the judiciary and Parliament".Taylor v Attorney-General NZHC 1630 at .
Judgment In his judgment Justice Heath adopted the reasons given by the Attorney-General in his s 7 report to Parliament on the Electoral (Disqualification of Sentenced Prisoners) Amendment Act's inconsistency with the Bill of Rights Act.Taylor v Attorney-General NZHC 1706 at . Reasons given by the Attorney-General in his report included that "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."Taylor v Attorney-General NZHC 1706 at .
Justice Heath added that there was also an inconsistency with the right to vote in that the law created an arbitrary disparity between those sentenced to imprisonment and those to home detention;
As a result, Justice Heath made a declaration mirroring the declaration the Attorney-General had made in his s 7 report;
Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act.Taylor v Attorney-General NZHC 1706 at .
In coming to his conclusion Justice Heath noted, This statement acted as a response to the Attorney-General's argument that the Court's jurisdiction was limited to indications of inconsistency as seen in Hansen.Hansen v R NZSC 7. In that case McGrath J stated that “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 [and] that none could be found”.Hansen v R NZSC 7 at . Heath J held that this precedent for indications did not preclude a formal declaration being made when appropriate.
Appeal and updates The Attorney-General appealed Heath J's decision, and the case was reconsidered by the Court of Appeal in May 2017.Attorney-General v Taylor NZCA 215. The central issue on appeal was whether the High Court should have made a declaration of inconsistency.Attorney-General v Taylor NZCA 215 at . The Court of Appeal reviewed both the jurisdiction of the courts to make such a declaration and its suitability in the circumstances, and affirmed the decision of the High Court.Attorney-General v Taylor NZCA 215 at . Furthermore, the Speaker of the House of Representatives challenged the use of parliamentary proceedings in the High Court decision, arguing that this was a breach of parliamentary privilege.Attorney-General v Taylor NZCA 215 at . The Court concluded that no such breach had occurred.Attorney-General v Taylor NZCA 215 at .
Attorney-General v Taylor NZSC 104: The Supreme Court dismissed the Attorney-General's appeal and upheld the lower courts' decisions that the judiciary has the power to issue declarations of inconsistency under the New Zealand Bill of Rights Act 1990 (NZBORA).
Attorney-General v Taylor developments in 2020:
In March 2020, the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill was introduced to Parliament. This bill aims to create a formal process for Parliament to consider declarations of inconsistency made by courts, like the one in the Taylor case. The bill requires the Attorney-General to report a declaration of inconsistency to the House of Representatives within six sitting days of the declaration becoming final. It allows Parliament to review the declaration if it chooses to do so through the adoption or amendment of Standing Orders.
Jurisdiction for declarations The Attorney-General argued that a declaration was not within the jurisdiction of the courts because it had not been expressly authorised by Parliament.Attorney-General v Taylor NZCA 215 at . He contended that the Declaratory Judgments Act 1908Declaratory Judgments Act 1908 had sufficiently covered the area, and that this effectively ruled out such a remedy at common law.Attorney-General v Taylor NZCA 215 at . The Court disagreed: it stated that the Declaratory Judgments Act did not exclude jurisdiction of the courts,Attorney-General v Taylor NZCA 215 at . and went on to establish multiple sources conferring jurisdiction.
The first source of jurisdiction considered by the Court was the Bill of Rights Act itself. The Bill of Rights does not expressly grant the power to make declarations, nor does it exclude such a power.Attorney-General v Taylor NZCA 215 at . The Attorney-General accepted that sections 2–6 of the Bill allow the courts to identify inconsistencies between protected rights and other statutes, but said that this is limited to simply making indications of incompatibility, not formal declarations.Attorney-General v Taylor NZCA 215 at . The Court did not accept this jurisdictional limit. It held that the Bill of Rights intended the courts to point out unjustified limitations on rights,Attorney-General v Taylor NZCA 215 at . and that to exclude declarations would be contrary to both this purpose and to New Zealand's obligations under the International Covenant on Civil and Political Rights.Attorney-General v Taylor NZCA 215 at . Furthermore, a declaration would provide a domestic remedy prior to any available internationally. The Court cited Baigent’s CaseSimpson v Attorney-General [Baigent’s Case] 3 NZLR 667 (CA) at 691 per Casey J. in stating that it would make no sense for Parliament to contemplate that New Zealand citizens could seek redress from the United Nations Human Rights Committee, but not from their own courts.Attorney-General v Taylor NZCA 215 at .
Next the Court turned to a number of cases that suggested the jurisdiction to make declarations should exist.Attorney-General v Taylor NZCA 215 at -. Temese showed acceptance of such a possibility as early as 1992,Temese v Police (1992) 9 CRNZ 425 (CA) at 427 per Cooke P. supported by Baigent’s Case two years later.Simpson v Attorney-General [Baigent’s Case] 3 NZLR 667 (CA). In Quilter v Attorney-General, the Court held that the Marriage Act 1955 was an unjustified limitation on the right to freedom from discrimination of same sex couples. Quilter v Attorney-General 1 NZLR 523. The Court in Quilter stated: "… once Parliament has charged the Courts with the task of giving meaning and effect to the fundamental rights and freedoms affirmed in the Bill of Rights, it would be a serious error not to proclaim a violation if and when a violation is found to exist in the law."Quilter v Attorney-General 1 NZLR 523 at 554 per Thomas J. The Court of Appeal in Attorney-General v Taylor saw this as further acknowledgment of the jurisdiction to make a declaration.Attorney-General v Taylor NZCA 215 at . Subsequently, Zaoui v Attorney-General included an argument by the Crown that the Court did not have the jurisdiction to make a declaration of inconsistency, and although the High Court did not consider such a declaration appropriate in the circumstances, it acknowledged that the jurisdiction to do so clearly existed.Zaoui v Attorney-General 2 NZLR 339 (HC) at . Finally, the most recent case Hansen v R observed that: "a major purpose of a Bill of Rights (entrenched or otherwise) is to prevent minority interests from being overridden by an oppressive or overzealous majority."Hansen v R NZSC 7 at per Tipping J. These precedents were taken by the Court of Appeal as convincing support for the jurisdiction of declarations of inconsistency.
Finally, the Court of Appeal supported the finding of Heath J that section 92J of the Human Rights Act 1993 shows a Parliamentary acceptance of a court's jurisdiction to make declarations of inconsistency.Attorney-General v Taylor NZCA 215 at . This section gives the Human Rights Review Tribunal the power to declare that an enactment is inconsistent with section 19 of the Bill of Rights, which protects the right to freedom from discrimination. In Taylor v Attorney-General, Heath J stated that it would be difficult to comprehend that Parliament would confer this declaratory power on the Tribunal but not on a more senior court.Taylor v Attorney-General NZHC 1706 at . This is reinforced by the fact that the statute also allows a right of appeal from the Tribunal to the High Court about such declarations.Human Rights Act 1993, ss 123(2)(c)-(d). The Court of Appeal agreed with this reasoning.
When a declaration should be made