Step forward for NZ human rights law

The country’s highest court has ruled that the High Court was acting within its powers when it declared legislation banning prisoner voting is a breach of New Zealand's human rights laws.

The Supreme Court ruled courts have the power to make a statement of declaration when laws are inconsistent with the bill of rights. It follows a lengthy legal battle brought by jailhouse lawyer Arthur Taylor who, in 2013, took the Government to the High Court in a fight to get prisoners the vote.

The landmark finding comes as Parliament carries out its routine review of New Zealand’s electoral laws.

In 2015, the High Court made a “declaration of inconsistency” after hearing Taylor's case, saying the 2010 extension of the voting ban to all prisoners – under the Electoral (Disqualification of Sentenced Prisoners) Amendment Act – infringed on New Zealanders’ right to vote, which is enshrined in the Bill of Rights Act.

This was the first time a court had made a declaration of this type. And while the declaration does not change the law, it could be used in support of future arguments over the amendment of the law.

The declaration sends a message to Parliament that the law it passed is indefensible as it limits individual rights without reasonable justification.

Chief Justice Sian Elias said the declaration also acted as “a formal and authoritative statement which is vindication for the appellants in the litigation”.

The Attorney-General appealed the initial High Court decision, taking it to the Court of Appeal and then the Supreme Court, arguing the court did not have the jurisdiction to issue a declaration. The Attorney-General also questioned the standing of Taylor to bring the case, as he was already in prison ahead of the law change and was not affected by the law change.

On Friday, the Supreme Court labelled the Attorney-General’s argument as “over-ambitious”, and ruled the High Court’s declaration was allowed.

However, it was a dissenting judgment, with the Supreme Court judges split on whether the declaration was allowed under the bill of rights and whether the court had jurisdiction, with three in favour and two against.

Those who argued against the declaration said it was not a real remedy – “it does not benefit the victim”. But Elias said it helped vindicate a right.

Wellington constitutional lawyer Graeme Edgeler said this set an important precedent, telling courts they had the power to make these types of declarations.

And while a declaration did not have a direct impact on the law, it could be used to support an argument for a law change.

In this case, the Justice Select Committee is already carrying out an inquiry into the 2017 election, which includes looking at electoral laws – as it does every three years.

However, in cases where the topic wasn’t already being scrutinised, a declaration like this could prompt some kind of inquiry, review, or statement in Parliament, if a framework was developed around these types of statements, Edgeler said.

Earlier this year, the Government announced it was looking at amending the bill of rights to enact the power of the higher courts to declare inconsistencies in legislation, as had happened in this case.

It wasn’t clear whether that would still be needed, with precedent being set in the court, but it could help set up a clear process and framework, Edgeler said.

Justice Minister Andrew Little is also planning to change electoral laws to allow same day enrolment and voting.

Edgeler said it was unclear what the level of political will or urgency was when it came to prisoner voting rights, but he suggested it would be more practical to bundle the changes together, if there was desire to allow at least some prisoners to vote.

This wasn't an issue high on the current Government's agenda, he said, but Prime Minister Jacinda Ardern advocated for prisoner voting during her time as justice spokesperson in Opposition, when this case first came before the courts.

There is also a petition before Parliament to allow prisoners to vote. The petition was launched by penal advocacy group The Howard League.

“Voting is a fundamental human right. Voting is one way of participating in society. This supports prisoners making connections to the community that support their reintegration.

“The current disenfranchisement of New Zealand prisoners disproportionately affects Māori because over 50 percent of New Zealand prisoners are Māori, despite the fact that Māori make up only about 15 percent of the population,” the petition says.

Taylor initially represented himself in the High Court, and was later joined by other lawyers in the appeals process, including human rights lawyer Richard Francois, and lawyers for the Human Rights Commission.

The Human Rights Commission said it welcomed the judgment, saying it strengthened New Zealand’s constitutional protection of human rights.

The commission’s chief legal advisor Janet Anderson-Bidois said the case was not just about the right of prisoners to vote in general elections.

"It is a case that underscores the importance of the Bill of Rights within our constitutional framework and the role of the courts in ensuring that laws are consistent with our core human rights.

“The judgment could potentially lead to a wider range of people having access to the courts when they are pursuing a human rights matter that is in the broader public interest,” she said.

Taylor also currently has a second case before the court, which challenges whether the 2010 amendment was ever legally passed. If he turns out to be successful in that battle, it could have far wider implications than the declaration.

That judgment is expected to be delivered before the end of the year.

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