seek a declaration that s 80(1)(d) is inconsistent with the right to vote contained in
s 12(a) of the New Zealand Bill of Rights Act.
[79]
The respondents’ statement of claim sought a declaration that the 2010
Amendment Act was inconsistent with the right to vote under s 12(a) of the
New Zealand Bill of Rights Act. It did not challenge the pre-existing disqualification
for those prisoners serving sentences of more than three years under s 80(1)(d) as
enacted in 1993.
[80]
In his statement of defence, the Attorney-General did not plead to the claims
of breach of s 12(a) (on the basis that they were assertions of law) but denied that the
prisoner applicants were entitled to any relief. In addition, the Attorney-General took
the position that the High Court lacked jurisdiction to make an order declaring an Act
of Parliament to be “inconsistent” with a provision of the New Zealand Bill of Rights
Act and, in any event, ought to decline to make any such order in the present case.
[81]
As already indicated, the Attorney-General accepts that the 2010 Amendment
Act is inconsistent with the right to vote contained in s 12(a) by which “[e]very New
Zealand citizen who is of or over the age of 18 years” has the right to vote in elections
of members of the House of Representatives. Nor does the Attorney-General seek to
argue that the blanket ban on prisoner voting is a limitation on the right to vote which
is justifiable in a free and democratic society under s 5 of the New Zealand Bill of
Rights Act.
[82]
In this position, the Attorney-General holds to the view first expressed in his
report on the Bill to the House of Representatives under s 7 of the Act. The report
acknowledged that the disqualification appeared to be inconsistent with s 12(a). And
it indicated that, because the proposed legislation was “both under and over inclusive”,
with “irrational effects” (which depended entirely on the date of sentencing), the effect
of the Bill was “disproportionate to its objective” and could not be justified under s 5.96
96
Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act
1990 on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill (17 March 2010)
at [14]–[16].
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