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AUCKLAND REGISTRY
CIV 2014-404-2657
[2015] NZHC 722
UNDER
IN THE MATTER OF
BETWEEN
AND
Hearing:
Court:
Counsel:
Judgment:
16 April 2015
JUDGMENT (NO. 3) OF THE COURT
This judgment was delivered by me on 16 April 2015 at 4.00 pm pursuant to
Rule 11.5 of the High Court Rules.
TAYLOR v KEY & ORS [2015] NZHC 722 [16 April 2015]
Contents
Introduction
The statutory framework for an election petition
Standing generally
Is Mr Taylor qualified to vote under s 60?
Does Mr Taylor qualify to be registered in the Helensville electorate
under s 74?
Is Mr Taylor disqualified from registering as a serving prisoner?
(a)
General background
(b)
Does the present s 80(1)(d) apply to Mr Taylor?
(c)
Does the original s 80(1)(d) apply to Mr Taylor?
(d)
The punitive/rehabilitative issue
(e)
The transitional issue
What follows from lack of standing?
Conclusion
Costs
[1]
[11]
[13]
[30]
[35]
[56]
[59]
[63]
[66]
[70]
[79]
[83]
[93]
[94]
Introduction
[1]
electorate. Mr Taylor challenges the lawfulness of the election for the Helensville
electorate, which occurred as part of a General Election held on Saturday, 20
September 2014.
Helensville, the Prime Minister of New Zealand, and the leader of the New Zealand
National Party.
[2]
grounds:
(a)
(c)
(d)
[3]
Mr Taylor sought leave to amend the petition to add in various allegations against
Mr Key in connection with the Facebook page video. Leave was declined in respect
of an allegation of corrupt practice, but Mr Taylor was given leave to include the
Facebook page video as a particular of the existing allegation of unlawful
endorsements.1 At the same time, we adjourned applications by Mr Taylor seeking
further discovery and that Mr Key answer interrogatories in relation to the Facebook
page video, for later consideration.
[4]
Because the petitioner complains of the provision made for remand prisoners
to vote, both the Electoral Commission and the Corrections Department filed
evidence and were represented at the hearing. The allegations in the petition in
connection with remand prisoners were initially far broader in their scope,
encompassing remand prisoners at Ngawha, Paremoremo, Mount Eden Corrections
Facility and the Auckland Region Womens Corrections Facility. However, after
reviewing the evidence provided by the Electoral Commission and the Department
of Corrections, Mr Taylor narrowed the allegation he advanced at the hearing to one
of inadequate provision for the exercise of remand prisoners right to vote at
Ngawha.
[5]
All of the grounds advanced by Mr Taylor to make out his claim that the
election was unlawful are resisted. Mr Key denies any knowledge or involvement in
breaches of s 197, if breaches there were. Mr Key and the Crown respondents say
that the Disqualification Act was validly enacted, and has the effect of excluding all
sentenced prisoners from the right to vote. Acknowledging that they are not caught
by the Disqualification Act, the Crown respondents argue that the provision made for
remand prisoners to vote was adequate in all prisons, including Ngawha.
[6]
Helensville election was unlawful and void, and an order that it be re-run. In
addition he asks that we issue a report to Parliament on the validity of the
Disqualification Act, any unlawfulness we find proved, and recommending changes
to provision made for remand prisoners to vote.
1
[7]
(b)
(c)
He was disqualified from voting both before and after the enactment
of the Disqualification Act.4
[8]
The issue of lack of standing was raised at a relatively late stage in a case
management memorandum dated 28 November 2014. Given the late stage the issue
was raised, the requirement that petitions are dealt with expeditiously and that
resolving the issue of Mr Taylors standing requires determinations of matters of
fact, it was decided that the issue should be addressed at the hearing of the petition,
rather than at a separate hearing.
[9]
petition challenging the Helensville election, a finding that does not turn upon the
validity of the present s 80(1)(d).
appointed to assist the Court, Mr Butler, presented detailed and carefully researched
submissions. We are satisfied that as a consequence of the efforts of Mr Taylor,
counsel assisting, and counsel for the respondents, both sides of the argument on the
critical points were thoroughly explored in the submissions presented to us.
The statutory framework for an election petition
[11]
In Payne v Adams the Court summarised the statutory framework for election
petitions to the High Court where the challenge is against the outcome of an election
2
3
4
We adopt the
(b)
[43]
In terms of s 241, certain irregularities are not to invalidate an
election provided the Court is satisfied that the election was conducted
substantially in compliance with the law as to elections and that the
irregularity did not affect the result of the election. However, where the
Court finds that the elected candidate has been guilty of any corrupt practice
(as defined in the Act), his or her election shall be void (s 237). Similarly
where the Court finds that corrupt or illegal practices have prevailed so
extensively in the election that they may reasonably be supposed to have
affected the result (s 238(1)). The Court may also disallow the votes of any
elector who has voted for a constituency candidate found to be guilty of
bribing, treating or unduly influencing the voter (s 239).
[44]
At the conclusion of the trial of an election petition under s 229(3),
the Court must determine whether the member whose election or return is
complained of was duly elected or returned or whether the election was
void. The Court must forthwith provide to the Speaker of the House a
certificate in writing of the Courts determination (s 243). Where a charge is
5
[12]
the standard of proof where corrupt or illegal practices are alleged is the criminal
standard of beyond reasonable doubt, where the challenge is on other grounds, the
standard of proof may be on the balance of probabilities.6
Standing generally
[13]
member and other candidates, and can potentially affect the rights of every voter
within the electorate. It is an area of the law where public interest is paramount.7
For those reasons, Parliament has restricted those persons who may bring an election
petition before the Court. Section 230(1) provides:
An election petition to which section 229(3) of this Act applies may be
presented to the High Court by one or more of the following persons:
[14]
(a)
(b)
(c)
approach to electoral petitions mandated by s 240 does not apply to the standing
issue or the jurisdiction of the Court to entertain a petition.8 That is apparent from
the wording of s 240 itself. Standing is not a legal form or technicality. It is
fundamental to the right to bring the petition.
Re Wairarapa Election Petition [1988] 2 NZLR 74 (HC) at 115; and Peters v Clarkson [2007]
NZAR 610 (HC) at [58].
Nair v Teik [1967] 2 AC 31 (PC); Re Wellington Central Election Petition, Shand v Comber
[1973] 2 NZLR 470 (SC) at 477478.
Payne v Adams, above n 5, at [49].
[15]
We agree with the conclusion of the Court in Payne v Adams that s 230(1)(b)
will apply generally to a person who, for example, claims that there was an
irregularity at the polls and that they would have succeeded if the irregularity had not
occurred.9 An obvious example is a candidate who was a runner-up or who polled
close to the successful candidate.
[17]
have been a candidate at the election, polled so poorly that even if the petition was
successful they would not have been elected or returned at the election but who
nevertheless has a genuine and proper interest in the way the election was conducted.
As the Court in Payne v Adams observed, it may also cover the case of a person
claiming to have been left off the ballot paper in error or to have been wrongly ruled
to be ineligible as a constituency candidate under s 145, for example.10
[18]
Three alternative
Mr Taylor submitted first that the right to vote referred to in s 230(1)(a) was
the right provided for in s 12 of the New Zealand Bill of Rights Act 1990 (Bill of
Rights). Section 12 provides:
Every New Zealand citizen who is of or over the age of 18 years
(a)
9
10
At [50].
At [51].
(b)
[21]
specific provisions of the Act. The Act contains qualification requirements for
voting in a particular election and in a particular electorate. We consider that it is
this qualified conception of the right to vote that is referred to in s 230(1)(a). Section
230(1) of the Act speaks of a right to vote at the election, rather than a right to vote
per se. Election is defined in s 3 as meaning an election of a member of the House
of Representatives. Therefore, the right in issue here is the right to vote in the
relevant electoral district to which the challenge relates.
[22]
Counsel for Mr Key argued that the right to vote refers to qualification under
s 60 of the Act. The amicus suggested as an interpretation open to the Court that the
right to vote refers to qualification under s 74 of the Act.
[23]
Section 60 sets out the requirements that must be met before a person is
(b)
any person
(i)
(ii)
(c)
(d)
any person
[24]
(i)
(ii)
(e)
(f)
Section 74, on the other hand, sets out the requirements that must be met
Qualification of electors
(1)
that person is
(i)
(ii)
(b)
(c)
(i)
(ii)
[25]
The following passage from Payne v Adams suggests that the right to vote in
[27]
unjust to consider that the s 230 phrase right to vote refers to the s 60 qualification.
If this was the case, a person could be prevented from registering under s 60, and
then have no ability to challenge the validity of the election even if the refusal to
register them was unlawful.
against him, he submitted that the Courts view in that case is obiter. Mr Payne
accepted he did not meet the requirements under s 74 so there was no need for the
Court to make a finding as to the relevance or applicability of s 60.
[29]
s 74. For reasons we now address, we consider that on either basis Mr Taylor lacks
standing. That means that in this case the issue is not determinative. Mr Taylor
lacks standing whichever interpretation is adopted. We therefore prefer to leave the
question of whether s 60 or s 74 is the relevant section to a case where that issue is
determinative.
Putting aside the categories of Campbell and Raoul Island residents and
the Helensville electorate12 and also must satisfy the remaining requirements of any
of s 60(a) to (d). The definition of elector does not advance consideration of this
issue. An elector is defined as:13
in relation to any district, means a person registered, or qualified to be
registered, as an elector of that district.
[32]
Mr Taylors name was not on the Helensville roll nor was he registered as an
As Mr Taylor cannot bring himself within s 60, he was not qualified to vote at
the 2014 election. This means that if the right to vote referred to in s 230(1)(a)
means qualification under s 60 he would lack standing to bring this petition.
[34]
We now move to address the two further issues that need to be determined if
the right to vote refers instead to qualification under s 74. Those are whether
Mr Taylor would have been entitled to enrol in the Helensville electorate, and
whether he was disqualified from registering under the terms of s 80(1)(d) of the Act
in either its original or present form.
11
12
13
Mr Taylor must be able to bring himself within the criteria set out in s 74.14
[36]
continuously in New Zealand for a period of not less than one year.
Section
74(1)(c)(ii) does not apply as Mr Taylor has at some stage resided continuously in
one electoral district for a period equalling or exceeding one month. The issue is the
application of s 74(1)(c)(i), which identifies the electoral district that the elector is
qualified to register for.
[37]
Section 72 sets out the rules for determining a persons place of residence.
Otaki was the last electoral district for which Mr Taylor was registered.
Te Atatu South address within the Te Atatu general electoral district. Mr Peden
confirmed that the Commissions records disclose that, in or before 1999, a person
with a slightly different date of birth (same day and month but 1959 as opposed to
1956) registered as an elector in respect of the address advised by Mr Taylor as Alan
William Taylor. That name remained on the Te Atatu roll until 17 September 2002.
14
15
16
During the period from 17 September 2002 to 17 September 2005, the name Alan
William Taylor remained on the dormant Te Atatu roll in accordance with s 109 of
the Act. From 17 September 2005, the name Alan William Taylor was removed from
the dormant Te Atatu roll because it had reached the three-year maximum. As noted,
by this time, Mr Taylor had registered in the Otaki electorate.
[41]
There was a suggestion Mr Taylor may also have used the name Michael
Victor Smith. A person with the same date of birth as Mr Taylor was registered as an
elector at a Titirangi address within the Titirangi electorate under that name on 22
March 2001. That address is now within the New Lynn general electoral district.
The name has been registered on either the Titirangi or New Lynn rolls since 22
March 2001. Mr Peden confirms that neither Mr Taylor nor anyone using the names
Alan William Taylor or Michael Victor Smith has sought to register as a voter in the
Helensville electorate.
[42]
Mr Taylor says in his affidavit that he would have voted in the 2014 election
in the Helensville electorate where he has been residing since 2004. In his amended
petition he pleads that Auckland Prison, Paremoremo, is located in the Helensville
electorate and that [he] resided at the Auckland Prison and made his home there for
the purposes of s 72(3) of the Act at the time of the election on 20 September 2014.
[43]
November 2014 (and confirmed during the course of the hearing itself), Mr Taylor
has said that he intends to live in the Helensville electorate on release. Specifically
he intends to reside in Riverhead. He has discussed that with an associate although
there is no formal arrangement to that effect in place. While the formal evidence
before the Court is limited, counsel for the respondents were in agreement that we
could accept the matters pleaded by Mr Taylor and his statement to the Court during
submissions as evidence of his view of his residence, and of his future intention.
[44]
the proposition that he has made the prison his home. Section 72(3) provides:
A person resides at the place where that person chooses to make his or her
home by reason of family or personal relations, or for other domestic or
personal reasons.
[45]
The legislative history of s 72(3) indicates that an equivalent section was first
[46]
In Re Wairarapa Election Petition the Court held that the test was objective
[48]
Mr Butler submitted that some meaning must be given to the use of only in
[49]
this context. He submitted that Parliament could have simply provided a person
who is detained in any prison shall not by reason of that detention be treated for
the purpose of subsection (3) as residing there.
[50]
Section 72(5) must be seen in its legislative context. When enacted, prisoners
who were subject to sentences of less than three years (short-term sentences) still
maintained the right to vote. For them, where they resided was important. The
legislative intent is that the fact of incarceration in a district may be taken into
account as part of the evidence of residence where there is other evidence linking a
prisoner to that district, such as the examples given above, but will be put to one side
where it is the only evidence of residence. As noted, s 72(3) incorporates the
concept of a choice of residence. There are good grounds to argue that a prisoner
cannot choose their prison as their residence. As Ms Hardy submitted, the very
essence of imprisonment is the involuntary separation from a community and the
subjection to State direction. It is the antithesis of the choice referred to in s 72(3).
Mr Taylor has no real choice about living at the prison. He is in the legal custody of
the Chief Executive of Corrections and may be transferred from the prison at any
time.19 On release from prison, Mr Taylor has no choice about the matter. He would
be unable to return to the prison unless again subject to a warrant of imprisonment.
[51]
19
[52]
some prisoners may become so institutionalised they come to identify with the
community in which the prison is located and while we note the relevant UK
provision permits a degree of flexibility as to where remand prisoners register, we do
not consider that in this case Mr Taylor has satisfied the onus on him to establish that
he resides in the Helensville electoral district.21
[53]
which a person may vote. The focus under s 74(1)(c)(i) is on where the elector last
continually resided for one month. Even if Mr Taylor can be said not to reside at
either his former home (as he has given it up) or at the prison, he would still (subject
to disqualification)22 be entitled to vote in the electoral district where he last
continuously resided for one month. That was within the Otaki electoral district.
20
21
22
Commonwealth Electoral Act 1918 (Cth), s 96A; and Canada Elections Act SC 2000 c 9,
s 251(2).
Representation of the People Act 1983 (UK), s 7A(2) and (5).
Discussed further below at [56][82].
[55]
For the above reasons Mr Taylor fails to meet the qualification under
faces the prohibition in s 80(1)(d). If the Act operates to prevent Mr Taylor from
registering as an elector because he is a prisoner, this is another reason he does not
have standing under s 230.
[57]
(d)
[58]
(d)
(ii)
(iii)
(a)
General background
[59]
Mr Taylor contends that he was entitled to vote at the 2014 General Election,
(b)
[60]
a consistent application. Its origins can be traced back to the concept of civil death
which was prominent in both ancient Greece and Rome as a mark of infamy.26
That concept applied to those guilty of heinous and treasonous crimes involving
moral depravity, and resulted in forfeiture of rights such as voting and holding
certain public offices.27
[61]
through the New Zealand Constitution Act 1852 (Imp) and, except for a short period
between 1975 and 1977 when prisoner voting rights were completely restored, has
continued in force in various guises since that time.28
25
26
27
28
See [2](a) above. Arguments were also advanced based on inconsistencies with the New
Zealand Bill of Rights Act 1990, the Human Rights Act 1993, the Treaty of Waitangi and various
international covenants, but none of those could operate to invalidate the Disqualification Act.
Sometimes called civic death: see, for example, Hirst v United Kingdom (No 2) (2006) 42
EHRR 41 (Grand Chamber, ECHR) at [22], [53] and [O-II3] .
Greg Robins The Rights of Prisoners to Vote: A Review of Prisoner Disenfranchisement in New
Zealand (2006) 4 NZJPIL 165 at 166. See also, Mirjan R Damaska Adverse Legal
Consequences of Conviction and Their Removal: A Comparative Study (1968) 59(3) J Crim L,
C & PS 347.
In sequence: New Zealand Constitution Act 1852 (Imp) 15 & 16 Vict, s 8; Qualification of
Electors Act 1879 (Imp) 43 Vict, s 2(4); Electoral Act 1905 (Imp) 5 Edw VII, s 29(1); Electoral
Act 1956, s 42(1)(b), Electoral Amendment Act 1975, s 18(2); Electoral Amendment Act 1977, s
5; Electoral Act 1993, s 80(1)(d); Electoral (Disqualification of Sentenced Prisoners)
Amendment Act 2010, s 4 (inserting the present s 80(1)(d) into the Act).
[62]
When the original s 80(1)(d) was passed, there was a reconsideration of the
[63]
Having considered Mr Taylors criminal history sheet in more detail since the
hearing, we consider that the Disqualification Act did not apply to Mr Taylor. He
was not, as at the time of the 2014 General Election, being detained in Auckland
Prison under a sentence of imprisonment imposed after the date that the
Disqualification Act came into force. On Mr Taylors own evidence, he is serving a
29
30
31
32
33
Department of Justice Electoral Reform Bill: Report of the Department of Justice (Department
of Justice, Wellington, 3 May 1993) at 57.
Royal Commission on the Electoral System Report of the Royal Commission on the Electoral
System: Towards a Better Democracy (Government Printer, Wellington, December 1986) at
[9.21] and recommendation 42.
J J McGrath QC, Solicitor-General to W A Moore, Secretary for Justice Rights of Prisoners to
Vote: Bill of Rights (17 November 1992) Letter at [26], cited in Greg Robins The Rights of
Prisoners to Vote: A Review of Prisoner Disenfranchisement in New Zealand, above n 24, at
170. A summary of the opinion can be found in Department of Justice, Electoral Reform Bill:
Report of the Department of Justice, above n 26) at 57. The question of justifiable limitation
was considered by reference to s 5 of the New Zealand Bill of Rights Act 1990.
The notion of arbitrary application reflects the proportionality approach evidenced in the
decision of the European Court of Human Rights in Hirst v United Kingdom (No 2) above n 26,
at [45], [62], [68] and [73]. See also Mathiew-Mohin v Belguim (1988) 10 EHRR 1 (ECHR) at
[52].
Set out at [13] above.
cumulative sentence. We therefore proceed on the basis it ran concurrently with his
existing sentences.35 As such, it had been served in full before the September 2014
General Election. At the time of the election Mr Taylor was not therefore detained
under a sentence of imprisonment imposed after the Disqualification Act came into
force, and the present s 80(1)(d) does not apply to him.
unnecessary for us to consider whether the Disqualification Act was validly enacted.
(c)
[66]
imprisonment of more than three years while the original s 80(1)(d) was in force.
Mr Taylor contends that there are two answers to the proposition that he was, in any
event, prohibited from voting in the 2014 General Election by the original
s 80(1)(d).36
[67]
with s 12(a) of the Bill of Rights, the prohibition on voting set out in the original
s 80(1)(d) applied only to those prisoners who were, at the time of any particular
election, serving the punitive part of a sentence of imprisonment.
[68]
The second (the transitional issue) raises a question about the effect of a
35
36
In his affidavits in support of the petition, Mr Taylor has said that the sentence he is currently
serving was both one of 19 years and 17 years six months. It appears (and we accept for present
purposes) that Mr Taylor is saying that, having regard to time spent on remand, there was a
sentence of 17 years six months remaining to be served from December 2004.
See Parole Act, s 76 and Harvey v General Manager of Rimutaka Prison HC Wellington CIV2009-485-1748, 7 September 2009 at [10].
Set out at [58] above.
person sentenced to imprisonment from voting it was valid to the extent that it
repealed the original s 80(1)(d). That was because a seventy five per cent majority
was not required to reinstate prisoners right to vote.
[69]
(d)
[70]
The Bill of Rights came into force in late September 1990. At that time, all
[71]
The
approach necessarily took into account the need for any ban to be demonstrably
justified in a free and democratic society.38
[72]
so as to exclude from its operation prisoners who have served the punitive part of
their sentence but remain in custody pending consideration of their cases by the
Parole Board.
37
38
[73]
[74]
b)
Mr Taylor suggests that the same distinction was drawn by the Grand
interpretation which would differentiate a prisoner serving the penal portion of his or
her sentence from one who is in the rehabilitative part, and subject to release on
licence by the Parole Board.
[76]
Zealand Parole Board was designed to do no more than to provide convenient labels
39
40
41
for the periods before and after an offender became eligible for parole. That is clear
from the context in which he was considering the time at which the offender was
eligible to apply for parole.42 We see no reason to adopt that distinction for the
different purposes to which the original s 80(1)(d) is directed.
[77]
contends. The New Zealand Parliament has never drawn a distinction between
prisoners serving the penal and rehabilitative parts of a sentence. Rather, in the
context of prisoner voting rights, there has been a consistent distinction drawn
between those who are detained in prison after conviction and those who are not.
Neither a person who is subject to a custodial remand nor one who has been released
into the community on parole is disqualified from voting by reason of the original
s 80(1)(d). Such people are not being detained in a prison pursuant to a sentence of
imprisonment at the relevant time. The present s 80(1)(d) works in the same way.
The disqualified person must be detained in a prison pursuant to a sentence of
imprisonment.43
[78]
drawn by Mr Taylor.
(e)
[79]
because it has been repealed. Repeal was effected by s 4 of the Disqualification Act.
However, Mr Taylors point is met by the transitional provisions of the
Disqualification Act.
[80]
prisoners disqualified from voting immediately before it came into force. Section
6(a) of the Disqualification Act provided that a person who was disqualified from
registration as an elector immediately before the commencement of the
Disqualification Act continued to be disqualified for registration as an elector as if
[the Disqualification] Act had not been enacted. Section 6(b) was the opposite side
42
43
of the same coin; it provided that serving prisoners who were not disqualified for
registration as an elector immediately before the Disqualification Act came into force
were not disqualified once it came into force.44
[81]
s 80(1)(d), a provision that we have held applied to prevent him from voting in the
2014 General Election.
We have concluded that Mr Taylor did not have standing under s 230 to bring
the petition as he did not have a right to vote at the election for all or any of the
following reasons:
(a)
(b)
(c)
44
Section 6(c) of the Disqualification Act makes it clear that s 4 (which enacted the new form of
s 80(1)(d) of the Act) did not override s 17 of the Interpretation Act 1999. Section 17 deals with
the general effect of repeal of any enactment. There was no suggestion that application of s 17
could affect the result of Mr Taylors petition.
[84]
The scheme of the legislation is that only those with standing may bring
[85]
[86]
And finally the preamble to s 230, already referred to, which defines those
categories of person who may present an election petition to which s 229(3) applies.
As we have found, Mr Taylor does not fall within any of those categories.
[87]
to consider the substantive merits of the petition. Mr Butler argued that we are at the
conclusion of a trial of an election petition, the petition not having been struck out
for want of standing prior to trial. He submits that being so, even if we decline to
consider the merits we should issue a certificate in accordance with s 243 and
perhaps a special report under s 245. Those sections provide:
243
Special report
At the same time as the court gives its certificate at the conclusion of the trial
of an election petition to which section 229(3) applies, the court may make a
special report to the Speaker as to any matters arising in the course of the
trial an account of which, in the judgment of the court, ought to be submitted
to the House of Representatives
[88]
We are satisfied that we should not consider the merits of the challenge, issue
a certificate under s 243 or a report under s 245. This is because it would be wrong
for us to consider or to conclude that a person was or was not duly elected on the
basis of a petition brought by a person who did not have standing. That is exactly
what s 229(1) is directed to ensure that it is only those who have a legitimate
interest (those within the s 230(1) categories) who may question an election. If the
election cannot be questioned in the proceeding, the Court cannot determine that the
person has or has not been duly elected, or issue a certificate to that effect. The
special report procedure applies only on the issue of such a certificate.
[89]
Mr Taylor submitted that s 240 provides a pathway for the Court to address
the substance of his challenge even if we find that he has no standing. Section 240
provides:
240
[90]
(a)
the court shall be guided by the substantial merits and justice of the
case without regard to legal forms or technicalities:
(b)
the court may admit such evidence as in its opinion may assist it to
deal effectively with the case, notwithstanding that the evidence may
not otherwise be admissible in the High Court.
By its terms s 240 applies only where the Court has before it an election
petition for the purposes of s 229(1) and (3), hence the words On the trial of any
election petition.
circumstance to overlook the form of the pleading and legal technicalities to achieve
real justice. It cannot cure a lack of standing.
[91]
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 Paynes arguments.45
[92]
challenge, we are mindful that to do so in this case without a proper legal basis might
45
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. 46 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.
Conclusion
[93]
For the reasons stated, we have concluded that Mr Taylor lacks standing to
Amicus costs are to be met out of public funds. We note that Mr Butler was
The parties and Mr Butler may file and serve submissions as to costs in
The respondents and the amicus, within three weeks of the date of this
judgment.
46
(b)
If Mr Taylor wishes to respond, within three weeks from the date that
the respondents file their submissions.