A New Zealand High Court has just told Parliament that its law limits rights in a way that cannot be demonstrably justified in a free and democratic society. In other words, it failed in its basic task as a lawmaker.

The issue of prisoner voting - or, rather, the issue of prisoners not being able to vote - has been a regular bête noire of mine. Here, for example, is my view on the National Government's decision to remove the right, back when I was young and full of fire.

And so it was with great interest that I followed Arthur Taylor's efforts to challenge that law in a variety of different ways. The one with the most chance of success, it seemed to me, was his application that the High Court declare the ban to be inconsistent with the New Zealand Bill of Rights Act 1990. I wrote last year about an earlier decision in respect of that application here, noting in relation to it:

So this judgment is at best a foot in the door. It affirms the possibility that courts can, in an appropriate case, make the sort of declaration that the prisoners want. But it also signals a marked judicial reluctance to do so in any sort of conceiveable circumstance. Which, I suspect, is going to satisfy no-one at all; a point I will return to in a future post. 

Here's that promised future post. For as of today we have Justice Heath's decision on the merits of Mr Taylor's application, and it's a real ripper.

In a nutshell, his honour finds not only that the decision to remove the rights of prisoners to vote limits their right to vote (obviously!), but also that this decision cannot be "demonstrably justified in a free and democratic society". That is to say, the effect of the measure is so arbitrary and inconsistent that it cannot rationally be defended ... it is (to put it colloquially) a crappy thing to do.

In itself, this conclusion on the effect of the law isn't anything new. It's what the Attorney General said before the law was considered (if you can grace the process through which it was passed with such a term) by Parliament. However, what is new is Heath J's chosen response to this fact.

Because, for the first time in NZ legal history,his honour chose to formally declare the legislative provision inconsistent with the NZBORA. This is a pretty big deal, and here's why.

First of all, Heath J's decision doesn't now give prisoners the right to vote. Section 4 of the NZBORA prevents that outcome by expressly saying that if other legislation is inconsistent with the NZBORA, then that other legislation remains in force and the Courts have to apply it. So despite Heath J's views on the law's merits, prisoners still cannot vote.

However, it does mark the judiciary's formal legal finding that this law (while still the one they have to follow) is BAD LAW. Parliament has done something that a properly functioning legislature simply ought not to do - taken away peoples' rights without having a good reason for doing so. And the High Court is looking them right in the eye and saying so.

Now, of course, Parliament (or, let's be honest, the National Government) may stare back and say "so what?" But it shouldn't. It really shouldn't. Because this is about more than just getting a political boost by beating up on prisoners (an unfortunate phrase, perhaps, given what we're learning about Mount Eden ... ). It's about what good government entails, and the way that public power can legitimately be exercised.

In a nutshell, where a Court is expressly telling the lawmakers that they have failed, that shouldn't be something to just get shrugged off with a brusque "we don't have to listen to you". It's a warning that the Government and Parliament owe it to us to listen to and take very, very seriously.

Anyway, I'll come back to this next week when I have more time to write on it properly. But I wanted to get something out quickly to note what is something of red letter day in New Zealand constitutional practice.


* Thomas J would have issued one in Quilter, but he was one of 5 ... so nothing issued.

Comments (9)

by Will de Cleene on July 24, 2015
Will de Cleene
Grundnorm Day.
by Rich on July 27, 2015

Would S.7 (Attorney-General to report to Parliament where Bill appears to be inconsistent with Bill of Rights) of BORA affect the validity of legislation if it wasn't complied with, either by the AG not reporting to Parliament, or the report being unacceptably tendentious?

(I notice that there doesn't appear to be one for the Land Transport... Bill that was passed under urgency last week - unless Hansard is usually tardy about putting reports on the website?)

by Andrew Geddis on July 27, 2015
Andrew Geddis

Hi Rich,

No - the Attorney-General's duty under s.7 doesn't impact on the validity of enacted legislation ... even if he/she completely shirks his/her duty under the NZBORA, that isn't something the Courts can even look at. The Court of Appeal said so here.

In respect of the Land Transport Bill - what right would be impacted under the NZBORA?

by Donald Ellis on July 27, 2015
Donald Ellis

Two big decisions in one week. Does this mean Public Law is now officially sexy?


by Andrew Geddis on July 28, 2015
Andrew Geddis

Does this mean Public Law is now officially sexy?

While I would love for Public Law to be considered "sexy" in the hope that some of that reputation might rub off onto me, I suspect it will continue to be seen as weird, oddly dressed and slightly creepy.

by Rich on July 28, 2015

In respect of the Land Transport Bill - what right would be impacted under the NZBORA?

Retroactive penalties? (S.26). 

I'm interested in how BOSCAWEN, MCVICAR & HIDE V ATTORNEY-GENERAL compares with the UK case Jackson v AG where the (judicial) House of Lords did delve into how legislation was passed. 

by Andrew Geddis on July 28, 2015
Andrew Geddis


Not sure that being issued a speeding ticket constitutes being "convicted of an offence" ... but I guess there could be some folk who (for instance) lose their license as a result of such speeding demerit points and then get pinged for disqualified driving. However, I'm willing to bet that the advice to the A-G was that s.5 covers this - you should have obeyed the limits even if they weren't lawfully set (because the limits exist for a good safety reason), so a technical fix to give those limits lawful status (and thus stop you challenging any penalty imposed on you for failing to abide by them) is OK.

With regards Boscawen and Jackson ... the latter deals with so-called "manner and form" provisions, or legally binding procedural limits on Parliament's power to make law. Courts in both NZ and the UK say that they will look at these and make sure that they are obeyed (see here, for instance). The former is not a legally binding procedural limit - the failure to follow s.7 doesn't affect the validity of any legislation. So the Court in Boscawen says that it won't look at the issue at all, but leave it up to the House to make sure it is getting the information it ought to as regards the NZBORA consequences of any Bill.

by Rich on July 28, 2015

Aha, thanks for clarifying that.

by Nik Green on September 09, 2015
Nik Green

I also thought that the law to remove voting rights from prisoners was grotesque, and part of me is pleased to see the Courts say so. 

But another part of me feels very uneasy with the rather slippery logic that the Court has used to take this step. Unlike the HRA, BORA doesn't provide for declarations of inconsistency, yet the Court's argument essentially boils down to "wellll, they gave us the power for HRA....they must have meant to give it to us for BORA." Which seems a long way from all that stuff I was taught in first-year Law about the importance of looking to Parliament's intent. It all feels a wee bit like the judiciary seizing power.

Maybe this is just how constitutions evolve - eg, Madison v Marbury. Personally, I think fundamental rights are woefully under-protected in this country, and would be happy to have the Courts play a stronger oversight role. But I'd much prefer that we as a community had a discussion about this and, through Parliament, explicitly authorised the judiciary to do this. 

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