This article first appeared in Australasian lawyer online.

The High Court of New Zealand has, for the first time, declared an enactment of Parliament inconsistent with New Zealand’s Bill of Rights. 

The case (Taylor v Attorney-General [2015] NZHC 1706) was taken by Arthur Taylor, a career criminal currently serving time in New Zealand’s toughest jail.  He has used his current sentence to become a self-described “prison lawyer” and has won several cases against the Department of Corrections, including a successful appeal against the Department’s ban on smoking in prisons. 

Taylor has now turned his attention to the prison vote.  In 2010, Parliament passed a law preventing all inmates from voting if they remain incarcerated on Election Day (excluding remand prisoners).  Previous law, which reflected New Zealand’s triennial election cycle and was the same as is Australia’s currently, only withheld the vote from people who were imprisoned for three years or more. 

But the effect of the current law is to disenfranchise the fine-dodger sentenced to just one week’s imprisonment the day before an election.  Similarly, if Jack and Jill commit exactly the same crime but only Jack has a suitable home detention address available to him, he will be able to vote and Jill will not.  At best the results under the 2010 legislation can be described as arbitrary.

The right to vote is one of the rights enshrined in the New Zealand Bill of Rights Act 1990 (NZBORA). In this case Justice Heath in the High Court had to decide whether preventing all sentenced prisoners from voting was inconsistent with that right, to the extent that it could not be demonstrably justified in a society like New Zealand’s. 

Justice Heath held the law was inconsistent, and could not be justified.  This was an unsurprising conclusion given New Zealand’s Attorney-General had earlier tabled a report in Parliament on a draft version of the law (as required under section 7 of the NZBORA) which came to the same conclusions.

The Judge then went on to break new ground.  Given the inconsistency with the Bill of Rights, Justice Heath had to consider whether the Court could fashion a remedy to vindicate the right Mr Taylor claimed had been violated.  Unlike in some jurisdictions such as Australia, courts in New Zealand cannot declare laws invalid if they are inconsistent with the Bill of Rights.  Ironically, the Bill of Rights itself prevents that from occurring since it is not supreme law. 

The remedy sought was a declaration that the prohibition on sentenced prisoners voting was inconsistent with the Bill of Rights. 

Justice Heath first considered whether the Court had the jurisdiction to grant such a declaration.  The possibility the Court may be able to issue a declaration of inconsistency was first suggested in 1992, not long after the Bill of Rights was enacted.  Since then, commentary has been confined mostly to academia and in a smattering of appellate decisions.

Assessing the ability to make such a declaration from first principles, Justice Heath considered, where there is a breach of the Bill of Rights, the Court must construct a remedy that responds to the wrong.  Although the wrong in this case was committed by Parliament, that was not sufficient justification to preclude a remedy.  Indeed Parliament had already, in the Human Rights Act 1993, authorised the Human Rights Review Tribunal to make declarations of inconsistency if an enactment is discriminatory.  As Justice Heath pointed out, Parliament itself had signalled the availability of the remedy.

The next assessment was whether the particular facts of this case justified a declaration.  Justice Heath noted that it was important for the Courts to respect the different branches of government but decided it is the Court’s obligation to do right “without fear or favour”, following the judicial oath.  The Judge was careful to note a declaration is not a political statement but a clear indication of the legal position. 

Justice Heath considered the right to vote was of such constitutional importance (as a fundamental aspect of a democracy) that, if a declaration were not granted in this case, it was difficult to conceive of a scenario where it could be.  So Mr Taylor has won another battle in the courts.  

It is worth noting the effect of Justice Heath’s decision.  In contrast to Australia, New Zealand does not have a formal written constitution against which new laws and actions of the government can be scrutinised.  So this decision adds another building block to New Zealand’s constitutional foundations – by confirming the availability of a remedy directly addressing the legitimacy of Parliament’s law-making.

The High Court has declared this law is not legitimate.  If Parliament is committed to the rule of law, it should not ignore this declaration.  But it can.  There is no legal requirement to respond. 

Yet disregarding the Court’s finding is unsatisfactory.  The electorate is entitled to expect New Zealand’s laws are good laws, and members of Parliament enact laws that are either consistent with the Bill of Rights or, if not, the inconsistency is justified.  For example, Justice Heath indicated there are strong arguments that the previous iteration of the law is justifiable.

As it stands, this declaration of inconsistency is a formal black mark on Parliament’s report card.  Parliament is not required to do anything to address its behaviour.  But it should.