Arthur Taylor's tilt at the windmills of Hellensville predictably has resulted in a shattered lance. Now we wait for the outcome of his really interesting court challenge.

As predicted here, Arthur Taylor's election petition challenge to John Key's victory in the Helensville electorate has failed. The court found that Arthur Taylor was:

(1) A prisoner who cannot enrol to vote (and who couldn't have enrolled to vote even if Parliament hadn't changed the law back in 2010 to disqualify all sentenced prisoners); and,

(2) Not "resident" in John Key's Helensville electorate, so not eligible to enrol there even if he'd been allowed to get on the roll at all.

These facts mean that Mr Taylor lacked the requisite "standing" to bring a petition under s.230(1) of the Electoral Act 1993 - he wasn't "a person who voted or had a right to vote at the election [in Helensville]" - which in turn meant that the Court lacked jurisdiction to hear all the various complaints he had about how prisoners were kept from voting and video messages from John Key were put up on the internet on polling day. In a nutshell, the Court decided that because even if these complaints were true it could not do anything about them in this case, so it would say nothing about them at all.

Like I say, this outcome doesn't surprise me because it's pretty much what I thought would happen. But there's still a point worth making for anyone out there who has any interest in electoral law matters.

The Court's approach here differs to that taken in the Payne v Adams electoral petition from 2009 (text of that case here, discussion of the Court's decision here). In that earlier case, the Court also found the petitioner, Mr Payne, lacked standing to bring his petition, yet went on to discuss at some length all the substantive problems he alleged had occured in the election process. Why did the Court in Mr Taylor's case not do likewise?

Well, the Taylor v Key Court simply says:

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”.

ln other words, the Payne v Adams Court probably did the wrong thing. Once it found that Mr Payne wasn't allowed to bring an election petition, it really had no real business examining whether or not the various problems he alleged about the election process were correct. Because any finding the Court might make that the election process was flawed would have been immaterial; there was no way for the court to overturn the election result because the person asking it to do so wasn't able to bring the claim. And so the the Court really had no business making these findings.

Of course, that then raises the question of why the Payne v Adams Court didn't think about this at the time. My suspicion is it didn't do so because it already had decided that all of Mr Payne's arguments were losers. So it could safely go on and address them because on every point it was able to say "even if Mr Payne had had standing, he still wouldn't have won."

But in Taylor v Key? I am speculating a wee bit here, but I think the Court might have felt Mr Taylor's claims about flaws in the electoral process - in particular, the way that the law stopping all prisoners from voting was enacted - had a measure of substance to them. In which case, if it went on to examine these it might have been put in the position of finding that the election process was flawed, but being unable to do anything about it because the person who brought the case to court wasn't lawfully permitted to do so. 

Which would be somewhat troubling as an outcome. 

Does that then mean that the Court is completely bottling the issue? Perhaps not. Because as it notes:

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 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. 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. 

In other words, there are other forums and other actions by which the various claims Mr Taylor is raising can be addressed. Given that, the election petition process - a process that is intended purely to determine who (if anyone) has been lawfully elected to the House - is not an appropriate way to rule on them once it has been found that a lack of standing prevents the Court from changing the election result even if successful. 

Meaning that now attention shifts to Justice Heath and what he has to say about the status of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010. Is it valid law, or did its passage fail to comply with s.268 of the Electoral Act? And if it is valid law, should it be declared inconsistent with the New Zealand Bill of Rights Act 1990?

Both things that no High Court judge in New Zealand has ever found. No pressure, then.

Comments (2)

by Rich on April 17, 2015
Rich

Interesting, at first one would think the s.268 (presumably its affect on not amending s.74 Qualification of Electors) doesn't affect s.80 (disqualifications). But on that basis, parliament could introduce a property qualification, disenfranchise the South Island, or restrict the franchise to over 45 year-olds with the initials JK, all by simple majority.

Does BORA have any bearing here?

by Andrew Geddis on April 18, 2015
Andrew Geddis

@Rich,

In an earlier ruling, Justice Ellis in the High Court accepted that if s.268 covers all of section 74 (who is qualified to be an elector) then it necessarily applies to introducing any disqualifications under section 80 (see here at [70]-[72]).

However, she went on to find that s.268 only applies to the age at which people can vote (18) and no other aspect of qualification under s.74 ... meaning that a simple parliamentary majority can introduce all the limitations you mention (except for restrict the franchise to over 45 year-olds with the initials JK - raising the age of voting needs a 75% majority). It'll be interesting to see if Justice Heath is of the same opinion!

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