There's something going down that wasn't here before

The High Court just cracked open the door to expressly telling Parliament that it has made laws that unacceptably breach human rights. But it also said that it really, really, really doesn't want to walk into that strange room.

Regular readers will know that the issue of prisoner voting - or, more accurately, the decision of the National and Act Parties to take away the right of prisoners to vote - is something that I've had cause to post on in the past. (If curious, see here and here.) You might think this is a topic that is done and dusted. After all, Parliament has spoken (even if its words, imnsho, amount to an obscenity.) The law is clear. At the election on September 20th, as with all subsequent ones until a future parliamentary majority revisits the issue, no person who is currently in jail serving a sentence of imprisonment will be permitted to vote.* End of story.

But ... is it? Because not all those told by a narrow majority of MPs that they have no right to participate in the governance of the country were prepared to just sit back and meekly accept that decision. Instead, as I discussed in this post, four prisoners have gone to the High Court and sought to get the legislation preventing them from voting (s.80(1)(d) of the Electoral Act 1993) declared "inconsistent" with the New Zealand Bill of Rights Act 1990 (NZBORA). (Kim Workman from Rethinking Crime and Punishment also usefully discusses the case and the reasons behind it here.)

Before we get too excited, such a declaration would not invalidate the relevant bit of the Electoral Act; the NZBORA specifically is written to stop this outcome from occuring. So even if the prisoners are successful in their application, it won't actually affect their legal right to vote one little bit. It will, however, serve as a pretty weighty reminder of just how wrong the original parliamentary decision was. That's because such a declaration will amount to a formally announced judicial finding that the removal of the vote from prisoners is a breach of their individual rights that cannot be demonstrably justified in a free and democratic society

Note that last bit. It's not that the issue is a bog standard policy one on which some might prefer one outcome and others another. Nor is it an issue on which there are valid arguments on either side, and reasonable minds may disagree on the weight or merit of those arguments. Instead, a declaration of inconsistency in this case would represent a judge examining the issue (the removal of the fundamental right to participare in the collective decision as to who will govern the country), exploring the reasons given for why it is necessary to limit the right in this fashion, and then explicitly announcing that Parliament has no defensible reasons for deciding to take that right away from the individuals concerned. That's a pretty damning conclusion for a court to reach. And it's got the capacity to create a fair amount of political embarrassment for whomsoever may be in government at the time.

So, not surprisingly, the Crown (aka the present government and its predecessor) has been resolute in arguing that the courts simply don't have the power to make such declarations. Whatever else the NZBORA is for, and however else it can be used as a check on governmental encroachment on individual rights, it doesn't let courts make the sort of declarations that the prisoners are asking for. Which is what the Crown argued before the High Court in response to the prisoners' case, in an effort to have the Court "strike out" their claim on the basis that the court had no jurisdiction to hear it. A claim that the High Court just rejected in a ruling, Taylor v Attorney General, released at lunchtime on Friday.

Before I turn to look at what the Court said, here's why the case matters. This case is not the first time that someone has tried to get a court to declare some legislation to be "inconsistent" with the NZBORA. (One of those cases was brought by the sometime Act Party MP John Boscawen, in an effort to have the Electoral Finance Act 2007 declared inconsistent with the NZBORA - a point that anyone fulminating that all this "rights nonsense" is just left-wing activism run amock might care to reflect on.) However, in past cases where such claims have been made, the courts have always managed to find a jurisdictional reason to avoid having to decide the matter. In other words, they've managed to say that it isn't the "right sort" of case in which to say whether such declarations are even an available remedy, let alone one that will be granted.

In the present case, that wiggle room didn't exist, for three reasons;

  1. The case was being brought in the High Court (i.e. it wasn't a case where a higher court was being asked to consider a matter that should properly have been raised "at first instance" in the "originating" court);
  2. The people bringing the case were directly affected by the legislation at issue** (i.e. this wasn't a case where the courts were being asked to examine the legislation "in the abstract", but rather in the concrete context of its application to named flesh and blood individuals);
  3. The only available remedy here was a declaration of inconsistency (i.e. the court couldn't find another way to try and make good any unjustifiable limit that is imposed on the prisoners' rights).

Which means that the judge on the case, Justice Brown, really had to bite the bullet. Either he had to accept the Crown's argument that courts cannot ever give the remedy sought - a formal declaration that Parliament acted inconsistently with the NZBORA by passing the legislation at issue - and throw the case out altogether, or he had to accept that such a remedy does potentially exist (before at a later date going on to decide whether or not to grant it).

As previously intimated, he chose the latter course of action. Declarations of inconsistency are, he concluded, potentially an available arrow in the judiciary's remedial quiver. Or, if that metaphor flew by you, here's the unvarnished version (at para. 82):

I consider that the respondents [the Crown] have not demonstrated that the claim should be struck out on the ground that it can be said that the Court undoubtedly lacks jurisdiction (in the strict sense) to issue declarations of inconsistency of the nature sought in the statement of claim.

So the prisoners are free to continue with their case, which now moves to an examination of the substantive claim (is the change to s.80(1)(d) of the Electoral Act inconsistent with the NZBORA?) and decision on consequent remedial action (what, if anything, should a court do about the matter?). And, given that the changes to the Electoral Act leading to the prisoners' disenfranchisement clearly cannot be justified in a free and democratic society (this, remember, is what the Attorney General told Parliament when it first looked at the measure), you might think that such a declaration is pretty much a given. But not so fast.

Here's what Brown J continues with (at para. 83):

[My] decision dismissing the current application could be a Pyrrhic victory for the applicants. To adopt the terminology of the Privileges Committee, my view of the Court’s current jurisdiction to grant declarations of inconsistency is: in theory “yes” but in practice “no”.

In other words, even if there's a jurisdiction to grant declarations of inconsistency in theory, there is no right to get one if the Court agrees with your substantive claims. The issue of remedy is a discretionary one.  And when it comes to what courts will choose to do, Brown J thinks there's a bunch of reasons why he (and other High Court judges) are going to be very loathe to actually come out and formally declare Parliament's legislation to be inconsistent with the NZBORA.

  1. Judges might be able to come up with reasons for why they can give such declarations at present, but they really, really would like the security of legislative permission (as given in s. 92J of the Human Rights Act 1993) before doing so;
  2. New Zealand's deep attachment to parliamentary sovereignty as a basis for its constitutional order means that the courts are very reluctant to do anything that might be seen as challenging Parliament's role as sovereign lawmaker;
  3. The courts can soft-soap their message by just noting in the body of their reasoning that although they conclude some legislation cannot be justified under s.5 of the NZBORA,  s.4 of the NZBORA forces them to apply it anyway (as happened in the Supreme Court's decision in R v Hansen).
  4. In the immediate case, the fact that Parliament went ahead and passed the law removing the right of prisoners to vote after the Attorney-General told them that this was inconsistent with the NZBORA means that the Courts ought not to second-guess that action with a declaration.

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.   

One last matter, however, before I draw this one to a close. A couple of months ago I posted about an event I helped coordinate at Parliament, discussing the future of our NZBORA and what (if any) changes to that legislation might be desirable. Two of the participants at it - Professor Stephen Gardbaum and Tom Hickman - had somewhat differing views on whether New Zealand courts should get into the business of issuing the sorts of declarations at issue in Taylor v AG. I won't rehash the arguments that they made here, as I'm presently in the midst of editing them (along with some other stuff) for publication on the internet. When that's done, I'll let you all know - it makes for an interesting commentary on just these sorts of developments.


* No person, that is, except for the 37 prisoners serving sentences of life imprisonment or preventive detention that Graeme Edgeler has identified as actually being given the right to vote by the National and Act Party's legislation. Oops, indeed!

** Or, at least, three of them were. One - the lead litigant, Arthur Taylor - actually isn't affected by the law change as he already was prevented from voting by the law before it was changed. Brown J flagged this as a potential problem for him when and if the issue goes to a substantive hearing (at para. 84).