From the ridiculous to the disgraceful

No, this isn't a post on Labour's leadership election (zing!) But it is about elections - more specifically, who can't take part in them.

A couple of electoral-law-related issues poked their heads above the ground in the last few days - one slightly ridiculous, the other somewhat more important.

First, the slightly ridiculous. Kim Dotcom's grand dream to found a political party and become an MP at the next election.

In an interview with the Washington Post's Brian Fung that focuses heavily on Dotcom's political plans, Dotcom said the following.

Brian Fung: From what I understand, as a German national you’re not able to run for parliament.

Kim Dotcom: When I made that statement, my lawyers were still looking into it, and their preliminary answer was that you can only run as a citizen of New Zealand. But they went through the full several hundred pages of New Zealand election law, and they found that if I’m a permanent resident of New Zealand who’s lived here for more than a year and is a registered voter — which I am will be in November — you can run for office. I’ll get more specifics on Tuesday when I sit with my lawyers, but at the moment it looks like I can run myself.

Now, others already have expressed a degree of (shall we say) complete and utter disbelief regarding this claim. So let me just add my voice to theirs and say that Kim Dotcom ain't going to be a candidate at the 2014 election. I've taken the liberty of putting the reason why in bold italics:

47 Registered electors may be members, unless disqualified

(1) Subject to the provisions of this Act, every person who is registered as an elector of an electoral district, but no other person, is qualified to be a candidate and to be elected a member of Parliament, whether for that electoral district, any other electoral district or as a consequence of the inclusion of that person’s name in a party list ... .


(3) Regardless of anything in subsection (1), a person is not qualified to be a candidate or to be elected unless he or she is a New Zealand citizen.

I have no idea what Dotcom's lawyers think they've discovered in "the several hundred pages of NZ electoral law" they've been wading through, but to my eyes s.47(3) is pretty much conclusive. Especially as the things Dotcom mentions ("a permanent resident of New Zealand who’s lived here for more than a year") are actually requirements to be permitted to register to vote under s.74(1), not candidacy per se. (Although, as s.47(1) states, actual registration is a pre-requisite to being qualified to be a candidate).

So - either Dotcom's lawyers have access to some special understanding of the Electoral Act 1993 that no-one else has, or Dotcom has misunderstood what his lawyers are telling him (that he will be able to register to vote come November), or he's spinning the media a line to try and make himself look like more of a player than he really is. I guess we'll find out later this week.

The second issue is a bit less fun, but also somewhat more serious. Four prisoners have teamed up to seek a judicial declaration that Parliament's decision to remove the right to vote from serving prisoners is inconsistent with the New Zealand Bill of Rights Act 1990. This could be a very interesting case to watch.

I say that not so much because of what it might tell us about the substantive question of whether the law was justifiable in Bill of Rights Act terms. It wasn't - as even Attorney-General Chris Finlayson said when the Bill first came before the House. So there is precisely zero chance that the Court is going to respond to this case by telling the claimants there is no inconsistency with the Bill of Rights Act because taking the right to vote from all sentenced prisoners is "demonstrably justified limit in a free and democratic society." Zero chance.

So what is the interest factor in this case, I hear you ask? Well, given that the Court is going to conclude that Parliament has enacted a law that removes individual rights in a way that cannot be demonstrably justified, what can it then do about that fact?

One thing it is told to do is see if it is able to read the law in a different way that doesn't limit the right at issue (or, at least, limits it in a lesser fashion). But, it is only to do this where it "can" give the law a different meaning - and that interpretative discretion doesn't extend to rewriting or twisting the words Parliament has used beyond the meaning that they reasonably carry. So where Parliament has been clear about what it wants, then the courts can't stop Parliament getting it by making the statute say something different.

(For the record, the Electoral Act 1993, s.81(1)(d) states that a person may not register to vote if she or he is "a person who is detained in a prison pursuant to a sentence of imprisonment imposed after [15 December 2010]." I'll again simply state that there is zero chance that a NZ court will read this as meaning anything other than what it says; if you're in jail serving your sentence, you don't get to go on the electoral roll. Zero chance.]

What, then, if the court can't read the law in a way that makes the rights inconsistency go away? Well, the New Zealand Bill of Rights is clear about this, too. The job of the courts is to apply the law as Parliament has made it, and they can't refuse to do so or deem that law to be invalid just because they think it imposes some limit on individual rights that cannot be justified.

So, then, if the courts won't be able to read this law in a way that allows prisoners to register to vote, and the courts will then have to apply the law anyway, isn't the prisoner's case just a waste of time and effort? Perhaps so, but there's one last possible thing that the courts may be able to do. They may be able to issue a formal "declaration of inconsistency", to the effect that the legislation Parliament has enacted falls short of the standards set by the Bill of Rights Act.

Two caveats to the above. First, I couch the matter in terms of "may be able to" because it's not totally certainty that the courts actually have this remedial power. The Bill of Rights Act does not expressly give it. And the Crown has always opposed such a power any time the courts have been asked to exercise it. Finally, while the courts have hinted that they believe that this remedial tool is in their garage, they've always managed to find procedural grounds for refusing to consider using it when asked.

However, those sorts of procedural grounds really aren't at issue here. The prisoners are putting the issue front and center by directly asking the Court to look at how the law is affecting them and other prisoners, assess whether the impact on their rights can be justified (which it can't), and then issue a formal declaration to that effect. If the Court refuses to do so in this situation, then I think that pretty much puts an end to the possibility of a declaration as a potential remedy in Bill of Rights Act cases.

So that's a point of interest for us public law scholars.

Second, remember that any declaration that the Court may issue would be no more than a formal judicial finding that the law barring prisoners from voting is an unjustifiable infringement of their individual rights. It would not alter the legal status of that ban - as stated above, the Bill of Rights Act cannot be used to invalidate another act of Parliament. And Parliament doesn't then have to take any notice of the Court's views (although you can be sure the existence of the declaration would be a bit of an annoying embarrasment to it).

So as a potential remedy, the declaration of inconsistency is limited. Exactly how powerful it is, I think, will depend upon how it is reported. If it is picked up as the courts "slamming" Parliament for trampling over the human rights of New Zealanders, then it may have some effect in pushing Parliament to revisit the issue. However, it could just as easily be pooh-poohed as elitist judges interfering in Parliament's business and daring to tell the people's representatives how they ought to be running the country. Or, it could be totally ignored altogether.

So that will be interesting to watch, too.