Bliss was it in that dawn to be alive

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.