Prisoner voting rights measure of democracy

The Government seems to be in no hurry to act on the Supreme Court’s upholding of a High Court decision which said a ban on prisoners voting was inconsistent with the country’s Bill of Rights.

The High Court decision that had been challenged was in Attorney-General v Taylor when it was determined, by a majority of three judges to two, that the New Zealand courts have the power to issue formal orders declaring that legislation is inconsistent with the rights and freedoms protected by the New Zealand Bill of Rights Act 1990.

The decision by the Supreme Court to uphold this decision was one of its most important judgments in its short history. I want to explore in a little more detail what the decision was about, what the Supreme Court actually said about some key issues, and what it all means.

In 2010, the National-led government amended the Electoral Act so no prisoner in New Zealand is able to vote in a national election. Previously, only prisoners serving a sentence of three years imprisonment or more were prohibited from voting. The amendment to the Electoral Act changed the law by extending this prohibition so that it applies to all prisoners.

Even at the time the amendment was passed it was clear this change was in breach of the New Zealand Bill of Rights Act (NZBORA). Section 12(a) of the NZBORA provides that every person over 18 has the right to vote, and any restriction on that right needs to be justified as the sort of restriction we would accept in a free and democratic society. No-one – not even the Attorney-General of the National-led government that passed the law – believes that a prohibition that applies to all prisoners in a blanket fashion can be justified in this way.

So there is a clear breach of the NZBORA. That wasn’t in dispute in the Supreme Court. The issue was what, if anything, the courts can do about that breach. The issue is a tricky one because our constitutional system of government recognises that Parliament can, through legislation, make or change the law in any way it likes and the courts can’t stop it doing so. The key question was whether the courts could take any type of formal action in response to Parliament’s breach of important rights and freedoms.

The answer, by a majority of 3-2, was that the courts could do something. They could issue a formal declaration that the change to the Electoral Act is inconsistent with the protected right to vote. This doesn’t change the law – only Parliament can do that – but it specifically points out why the law is a problem and why it ought to be changed.

This was not an unexpected decision. The Supreme Court essentially confirmed the view already reached in the High Court and the Court of Appeal, and many legal commentators have long predicted that sooner or later the courts would claim the power to issue formal declarations of inconsistency of this type.

The significance of this judgment is already being felt. Even before the decision came out, the Government had committed to amending the NZBORA to confirm that the courts have the power to issue these kinds of declarations and to require the government to take action in response. We don’t yet know what the detail of that response mechanism will look like, but even at a high level the change will require Parliamentary breaches of important rights to be taken more seriously. It is unlikely this change would have been seriously considered unless the Taylor litigation had been commenced.

More directly, the Supreme Court has placed the onus on the government to reconsider the changes to the Electoral Act that prohibit all prisoners from voting. The High Court, Court of Appeal and Supreme Court have all found that the legislation is contrary to rights that are foundational to our democracy. Even though some of the Supreme Court judges may shy away from making this point expressly, this decision puts pressure on the government to change the law.

In this respect, the initial response from the government has been rather disappointing. Justice Minister Andrew Little has stated that changing the law to make it consistent with the protected right to vote is “not much of a priority” for the government. That cavalier attitude towards a well-signalled and fundamentally important decision of our highest court is simply not good enough. Maintaining the Electoral Act in its current form erodes the credibility of our democracy for no apparent benefit, and I can only hope the government reconsiders its position on this issue quickly.

Either way, the ultimate legacy of the Taylor litigation is likely to be as a barometer of how seriously our government takes the fundamental rights that underpin our society and our government. Strength in our democracy comes from judicial and political parts of government working together. The Supreme Court has opened the door to the government to demonstrate that is sees the value in that type of collaboration. Time now for Parliament to act.