Could John Key's place in Parliament be under threat from Arthur Taylor's electoral petition? No ... no it couldn't.

I see, via Stuff, that Arthur Taylor's electoral petition seeking to overturn John Key's return from the Helensville electorate has commenced in the High Court. Let me go on record as saying that it has zero chance of success. I say that for (at least) three reasons.

First, Taylor has a problem when it comes to his "standing" to bring the case in the first place. In order to do so, he has to be "a person who voted or had a right to vote at the election". And, of course, he didn't vote or have the right to vote in 2014 ... because he wasn't enrolled to vote, because the law apparently said he wasn't allowed to because he was in prison. So in order to get standing - to be recognised as someone who is allowed to challenge Key's election - he's going to have to convince a court that he (or the other prisoners he's representing) really had a legal right to be enrolled to vote which was improperly denied to him (and that this then means he had a "right to vote" even though he wasn't enrolled to do so). Oh - and he'll also have to show that even if he (and the other prisoners) possessed this legal right to enroll to vote, he (or at least one of the others) was entitled to be enrolled in the Helensville electorate.

Second, in order to impugn Key's election, he has to show that there was some failure to abide by the law in the 2014 election campaign. One of these claimed failures is a complete no-hoper. The fact that the Young Nationals (allegedly) shared a video supportive of Key on Facebook on polling day will not be a basis for invalidating Key's election. It most probably was a breach of electoral law - the Electoral Commission certainly thinks it was - but it just isn't of a nature that will lead to a court overturning the election result of a candidate who won by over 18,000 votes. Full stop.

The real claimed failure is, of course, the denial of prisoners' right to vote because of the effect of s.80(1)(d) of the Electoral Act. Taylor will advance much the same arguments that he made in his unsuccessful pre-election attempt to get an injunction allowing prisoners to enroll and vote - in essence, that s.80(1)(d) was invalidly enacted and/or can be interpreted in ways that still permit (at least some) prisoners to enroll and vote. And just as occurred before the election, I think the court will knock all of these back. As clever and well-argued as Taylor's claims are (and believe me, they are clever and well-argued), there just is no way that a court is going to find that s.80(1)(d) means anything other than what it appears to say on its face. Our courts just aren't yet of a mindset where they will stare Parliament in the face and tell it that a law it thinks it has enacted into force isn't really the law.

Third, even if Taylor can convince the court that he's able to bring this challenge and that  refusing to enroll prisoners was unlawful, he still has to show that this fact should invalidate Key's election. In order to do so, he must demonstrate either that the election was:

(1) "so conducted as to [not] be substantially in compliance with the law as to elections"; or  

(2) some "failure, omission, irregularity, want, defect, absence, mistake, or breach ... affect[ed] the result of the election."

The problem with (2) is that even if every prisoner in New Zealand was allowed to enroll to vote and did so in the Helensville electorate, that still wouldn't produce enough potential votes to overturn Key's 18,287 vote majority. So Taylor will have to get the court to say (1): that the failure to allow prisoners to enroll and vote is such a grevious failure to follow the law that it calls into question the electoral process not only in Key's Hellensville electorate, but across the whole country. In other words, the court would (in effect) have to say that the 2014 election was so flawed that it cannot count as a "proper" election at all. Which would be a ... brave call by the court.

So I don't think that there's any real doubt as to the outcome of Taylor's challenge. Does that then make the whole thing a waste of time? Well, that leads me to the one point that I want to call Kelly Dennett (the author of the Stuff article) out on:

Taylor is presenting his case at the three-day hearing in front of Justice Geoffrey Venning, Justice Helen Winkelmann and Justice Paul Heath despite Justice Rebecca Ellis ruling earlier in September that prisoners being denied the right to vote wasn't inconsistent with the New Zealand Bill of Rights Act.

I've posted on this decision here. The tl;dr of it is that while Justice Ellis was quite scathing about the law that disqualifies all prisoners from voting (she calls it "constitutionally objectionable" at para 81), she was unable to provide any legal relief for those challenging it. That was because she found the intent and wording of the law was clear - a narrow majority of Parliament didn't want prisoners to be able to vote, so the courts (due to parliamentary sovereignty) were required to apply the letter of that law.

But that outcome is very different to saying that her honour ruled that the law "wasn't inconsistent with the New Zealand Bill of Rights Act." Saying that makes it sound like Justice Ellis concluded that the decision to remove the right to vote from prisoners was a justified limit on the right to vote. She didn't. And I challenge anyone to read the first 18-odd paragraphs of her judgment and then claim that this is what her honour thought.

Of course, the question of the law's consistency with the New Zealand Bill of Rights Act is the subject of yet another of Arthur Taylor's proceedings before the courts. At some point later this year the High Court will hear his application for a formal declaration that s.80(1)(d) is inconsistent with that legislation. Which is what Taylor really wants to use the courts for - as a venue to keep generating publicity for the effect that this law is having and a means of demonstrating the lack of rationale for its existence.

So, then, is Taylor's action a waste of time? Well, if Parliament won't listen to and act on these matters, where else can he go to?

Comments (2)

by Tim Watkin on January 27, 2015
Tim Watkin

Our courts "aren't yet" of a mindset to stare down parliament ... Why "yet"? You think it's inevitable or likely they will one day? That they will raise their voice more over time?

by Bruce Thorpe on February 02, 2015
Bruce Thorpe

Bridges are for burning, windmills for tilting, and the call for justice will always be heard at some level.

He might not win this court case, but there is nobody once imprisoned who will not hear him - and think about it.

 

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