Result
[71]
For these reasons, in accordance with the view of the majority, the appeal is
dismissed. The cross-appeal is allowed. The effect of that decision is that Mr Taylor
has standing. However, as the Court of Appeal did not amend the declaration of
inconsistency granted,91 we need not amend the order granted below.
[72]
Costs are reserved. If not able to be agreed, submissions on costs should be
filed by the respondents on or before 4 pm on 28 November 2018 and by the appellant
on or before 4 pm on 5 December 2018. Any submissions in reply are to be filed by
the respondents on or before 4 pm on 12 December 2018.
ELIAS CJ
[73]
The High Court granted the respondents, all sentenced prisoners, a declaration
that the voter disqualification for prisoners under 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”.92 The Court of Appeal dismissed the
Attorney-General’s appeal.93 He now appeals with leave to the Supreme Court on a
point of importance: does the High Court have jurisdiction to grant a declaration that
legislation is inconsistent with the New Zealand Bill of Rights Act? It is accepted that
the 2010 Act is inconsistent with the right to vote under s 12(a) and cannot be justified
under s 5 as a limitation that is reasonable in a free and democratic society. The
Attorney-General’s position is, rather, that the High Court has no power to grant a
declaration as a standalone remedy.
[74]
I have had the advantage of reading in draft the reasons given by
Ellen France J. I agree with her conclusion that a declaration is available as a remedy
in circumstances of legislative breach of the New Zealand Bill of Rights Act and am
in general agreement with her reasons, although I add some additional points of my
91
92
93
Taylor (CA), above n 4, at [189].
Taylor v Attorney-General [2015] NZHC 1706, [2015] 3 NZLR 791 (Heath J) (referred to
throughout as Taylor (HC)) at [79].
Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24 (Kós P, Randerson, Wild, French
and Miller JJ) (referred to throughout as Taylor (CA)).
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