Which Parliament is truly sovereign?

Arthur Taylor's most recent attack on the ban on prisoner voting has failed. But we learnt something about New Zealand's constitution as a result. Oh - and judges really need to think about how their words may sound to all those who read them.

Last Friday afternoon the High Court released its most recent judgment in jailhouse lawyer Arthur Taylor's ongoing legal crusade against the law that bans prisoners from voting (PDF copy of Taylor v Attorney General available here). I've posted on previous iterations of this battle herehere, and (most importantly) here, for anyone really interested in following the trail.

This latest hearing had the potential to be a real barnstormer, as it asked the High Court to invalidate (that is, declare to be not-law) a statute passed by the New Zealand Parliament. That is something that has never happened before in our constitutional history. So if the Court did so now, we'd be witnessing a constitutional revolution taking place.

To try and bring about this result, Taylor and the lawyer for the other prisoners involved, Richard Francois, threw a whole lot of issues at the sitting judge, Justice Fogarty. Much of it he deemed to be irrelevant as it was inviting the courts to start sticking their noses into the political reasons why legislation gets drafted, debated and enacted by Parliament. Fogarty J then told them that this simply isn't a place that judges in New Zealand are prepared to go. 

But one issue regarding the manner in which the law banning prisoners from voting was enacted apparently is the business of the courts. Because our Electoral Act 1993 contains a little-known provision, s.268:

(1) This section applies to the following provisions (hereinafter referred to as reserved provisions), namely,


(e) section 74, and the definition of the term adult in section 3(1), and section 60(f), so far as those provisions prescribe 18 years as the minimum age for persons qualified to be registered as electors or to vote:


(2) No reserved provision shall be repealed or amended unless the proposal for the amendment or repeal—

(a) is passed by a majority of 75% of all the members of the House of Representatives; or

(b) has been carried by a majority of the valid votes cast at a poll of the electors of the General and Maori electoral districts

What you then need to know is that when Parliament voted to ban prisoners from voting back in 2010, it did so on a bare 63-58 majority basis. Which means that it didn't meet the procedures mandated in s.268(2). So if banning prisoners from voting involved a change to one of the reserved provisions (a matter we'll get to in due course), then that change did not take place in accordance with the way that Parliament (back in 1993) required of itself by statute. And Parliament, just like everyone else, is bound by the laws of New Zealand.

That fact then creates a possible problem. Because the ban on voting also occurred through an enactment duly debated and voted on by the New Zealand Parliament of 2010. A majority of its members wanted this rule to be the law, and as Parliament is our highest lawmaker then it can decide to make any law on any issue whatsoever. Why, then, does it matter what the Parliament back in 1993 said about how Parliaments in the future are allowed to make law? Isn't every Parliament sovereign, able to decide for itself what the law should be (as well as how to make those laws)?

 So - the will of which sovereign Parliament prevails? That of 1993 (when it set out statutory rules that purport to constrain how future parliaments may make law)? Or that of 2010 (which has said (by a bare majority) that it doesn't want prisoners to vote)? This particular question has sparked a lot of academic debate over the years - see here, or here, or here, or here.

Given the historically deeply contested nature of that question, it must have sparked some anguished judicial soul-searching, right? Judges must have been deeply conflicted when deciding how to approach the issue here in New Zealand! Not so. Instead, it seems that everyone has chosen just to ignore the question's existence and accept that not only is  today's Parliament bound in law to respect the procedural limits imposed by a past Parliament's statute, but also that the Courts are empowered to invalidate any apparent "enactments" that fail to do so. Because when the issue came up before the High Court in 2014, Ellis J summarily dismissed it in one line:

It is not disputed that such non-compliance with ss 268(1)(e) and 268(2) would invalidate the amendment.

Nor did Fogarty J spend any time at all in his decision asking whether he could invalidate the ban on prisoner voting if it had been adopted in a way inconsistent with s.268. He just assumed that he could - because no-one (by which I mean the Crown) argued that he couldn't. No matter what debates there may have been about that matter in the past, it's simply something that the courts now can do ... because the courts say that they will do it.

(At this point allow me to take a bit of a nudge at something Fogarty J says in the course of his decision. At para. 56 his Honour solemnly states that:

In short, the function of judges is to recognise constitutional arrangements, but not to create them. That is, to identify what the law is and to apply it in order to do justice. 

This is, of course, a very common and useful fiction that Judges adopt to explain their role. It is, however, quite patently a fiction. Because how exactly did the High Court simply "identify" that "the law" permits a NZ Court to apply a manner-and-form provision (such as s.268) in a way that may invalidate an "enactment" that has been passed by a more recent Parliamentary majority? Is not taking on that role "creating" a new set of constitutional arrangements for NZ? But I digress ... .)

Because if the Courts can invalidate statutes that fail to conform to a manner-and-form provision like s.268 (because they will do so), then the question is whether the ban on prisoner voting did so. Only some of the features of NZ's electoral process are "reserved provisions" - and another little nudge for Fogarty J here ... it's a "reserved provision", not a "reserve provision". In particular, s.268(1)(e) protects:

section 74, and the definition of the term adult in section 3(1), and section 60(f), so far as those provisions prescribe 18 years as the minimum age for persons qualified to be registered as electors or to vote

Section 74 is then the provision that gives all NZ citizens and permanent residents who have lived in NZ for at least one year the right to enrol to vote (and thus vote) at elections. So (the Court accepted) banning prisoners from voting has the effect of amending s.74 as it stops some people currently permitted to vote under it from being able to do so. 

The question then is, does s.268(1)(e) protect all of s.74, in which case the disqualification of prisoners failed to meet the procedures required in s.268(2)? Or, does it just protect that section and others insofar as these stipulate the minimum voting age? So, changing the voting age from 18 to 16 requires the use of the special procedures set out in s.268(2). But changing any other voting qualifications (or imposing any other voting disqualifications) simply requires a bare parliamentary majority making law in the ordinary way.

That's a question of statutory interpretation that Fogarty J answered in the latter way. I think he was right to do so. It certainly seems to be what the Parliament that first created the protection for the reserved provisions intended to happen - they saw the voting age as being the contentious issue that ought to require cross-party or public agreement to change. And it is the most natural reading of the statute. So I have no real problems with the outcome of the case on this point.

Note what it does mean, but. It means that in order to let 17-year-olds vote, 81 of 121 MPs have to agree. Or a full referendum has to be held. But if 61 MPs were to wake up next week and decide to take away the voting rights of permanent residents, or to stop people owing student loan debt from voting, or to extend the ban on sentenced prisoners voting to a ban on all prisoners (on remand or otherwise) voting, then they could do so with no restriction whatsoever. Does that make much sense?

One other point about Fogarty J's judgment. As a second form of challenge to the ban on prisoner voting, Taylor asked the High Court to declare it to be inconsistent with the NZ Bill of Rights Act because it unjustifiably discriminates against Maori (due to the disproportionate number of Maori who are affected by the measure). Such a declaration would not render the law invalid, but it would buttress and consolidate the declaration Taylor already had successfully obtained in an earlier decision.

Fogarty J refused to do so as he did not believe that the ban on prisoner voting had the discriminatory impact alleged. I've written enough already, and I've feelers out for someone else to discuss this aspect of the case in more depth, but there's one point of the judgment that I just have to express my deep disquiet over.

 At para. 147 Fogarty J has this to say:

It is a happenstance that Maori are over-represented in the prisons. But that happenstance does not generate a rights obligation sounding in the NZBORA of Parliament to compensate. Over representation has to do with poverty and dysfunctional upbringings, two conditions which are common to most prisoners of every race and ethnicity. 

This is very unfortunately phrased, to put it mildly. "Happenstance" simply is not the appropriate word to use. I can say that certain Maori academics of my acquaintance were shocked and upset by the apparently casual approach to what is a cultural and social disaster for Maori (even if that was not what was intended by the word's use). The choice of words - especially the choice of words used in a High Court judgment delivered to the people of New Zealand - in this context matters. A lot.