The Court of Appeal has upheld Arthur Taylor's challenge to the ban on prisoner voting under the NZ Bill of Rights Act ... except that he personally shouldn't have been able to bring the case in the first place, and he still won't be able to vote. But still - exciting!

I've been writing on the issue of prisoner voting generally, and jailhouse lawyer Arthur Taylor's various challenges to the 2010 law preventing it in particular, for quite some time now. And as I excitedly posted last Friday, the latest chapter in that saga has just been handed down by a super-sized Court of Appeal. It's a really important judgment on not only the substantive matter at hand, but also as a marker of the relationship between the judicial and legislative branches of the New Zealand Government.

Let's commence by reviewing what the Court of Appeal was looking at. It heard an appeal by the Crown (i.e. lawyers for NZ's Government) against the judgement in a 2015 High Court case brought by Mr Taylor and four other prisoners, which I described at the time as follows:

In a nutshell, [Heath J found] not only that the decision to remove the rights of prisoners to vote limits their NZ Bill of Rights Act right to vote (obviously!), but also that this decision cannot be "demonstrably justified in a free and democratic society". That is to say, the effect of the measure is so arbitrary and inconsistent that it cannot rationally be defended ... it is (to put it colloquially) a crappy thing to do.

In itself, this conclusion on the effect of the law isn't anything new. It's what the Attorney General said before the law was considered (if you can grace the process through which it was passed with such a term) by Parliament. However, what is new is Heath J's chosen response to this fact.

Because, for the first time in NZ legal history,his honour chose to formally declare the legislative provision inconsistent with the NZBORA. This is a pretty big deal ... .

I then went on to explain just why the declaration of inconsistency was "a pretty big deal" in a piece for the NZ Herald

Judges will usually say that their job is to just apply the law as Parliament intends it to be. They may on occasion use comments in their judgments to suggest to Parliament that it might wish to reconsider some matter, but in general the courts don't get into the business of assessing the wisdom of parliamentary enactments.

Justice Heath's decision to issue a declaration reverses that position. His honour is unequivocally and explicitly telling Parliament that its 2010 law is a bad one because it fails to meet the standards Parliament itself established when passing the Bill of Rights Act.

However, the Crown was not at all happy that this declaration had been issued. Not, we should note, that it disagreed with Heath J's substantive view of the 2010 legislation. The Crown has never even tried to argue that taking the right to vote from all prisoners represents a justified limit on their NZBORA rights. 

Nor was the Crown worried about the effect that the declaration might have on prisoners' ability to vote at the 2017 and subsequent elections. The NZBORA is clear on that issue - even if another enactment is inconsistent with its rights guarantees, that other enactment remains valid law that must be applied in the courts. So no (additional) prisoners would be able to vote as a result of Heath J's formal declaration.

Instead, the Crown's complaint was that the High Court had done something that it simply did not possess the lawful power to do - given a remedy (a formal declaration of inconsistency) that does not exist as a matter of law. So it went to the Court of Appeal to argue its point, where it was joined by the Speaker of the House of Representatives who had some complaints of his own about the way that parliamentary proceedings had been treated in the High Court.

It is a measure of the appeal's importance that a 5 strong bench heard it - usually an appeal only gets 3 judges at this level. It is a measure of the seriousness with which the Crown viewed the appeal that it rolled out its big NZBORA gun, Paul Rishworth QC, to argue the matter. And it's a measure of the strength of the Court's response that it ruled 5-0 against the Crown on (virtually) all matters, as well as rejecting the Speaker of the House's concerns that the ruling in the High Court improperly intruded into parliamentary terrain. 

For the sake of keeping to an only slightly ludicrous word count, I'll leave aside that latter matter of parliamentary privilege. Not that it isn't important - there's a lot in it that may become relevant in future cases where a declaration of inconsistency is sought. But let's focus here on the Court of Appeal's response to the Crown claim that the High Court should not (because it could not) have issued the declaratory remedy that it did.

First, the Court of Appeal rejected the Crown's claim that the inherent power of New Zealand's courts simply does not extend to granting a declaration of inconsistency, as there is no question of law involved and Parliament hasn't empowered it to issue such remedies absent any question of law. The Court simply was having none of that: 

[62] In conclusion, judicial power in New Zealand can be traced through the New Zealand Constitution Act 1852 to a political settlement that distributed authority among the branches of government. The judicial function extends to answering questions of law, and as a general proposition it does not require express legislative authority. Inconsistency between statutes is a question of interpretation, and hence of law, and it lies within the province of the courts. 

There's an important, deeper point at work here. The Crown's position, in essence, was that the judiciary only has a prescribed and limited sphere to work within, and only Parliament can then authorise it to do anything beyond that prescribed and limited sphere. The Court vigorously pushed back on that claim - the judiciary's sphere of action is just as broad (and as important) as the parliamentary one; indeed, it extends to considering whether parliamentary enactments are proper law at all. And so nobody puts Baby in the corner!

Second, the Court of Appeal also rejected the Crown's invitation that, even if a power to issue declarations of inconsistency exists in theory, the judiciary ought to refuse to take up that power and use it because doing so would do little good and possibly some harm. It would, said the Crown, unnecessarily tie up the courts' time, bring the judiciary and political branches into potential conflict, and achive little in the end because there's nothing to make parliament listen to what the courts have to say anyway.

 Well, maybe, said the Court. But those only are reasons to restrict the sorts of cases in which declarations are granted, not to refuse to ever give declarations at all. And the Court simply wasn't going to foreswear a power that lies within its role as declarers of the law, and which might be appropriate to use in certain cases, on the basis of gloomy predictions alone. 

Then third, the Court looked at its role under the NZBORA in order to determine if declarations of inconsistency are the sort of remedy that it ought to be giving under that legislation if asked to. This question required the Court to decide what exactly the NZBORA is there to do. I've argued in a recent academic article (co-written with an annoying tweeper, Marcelo Rodriguez Ferrere) that:

by issuing declarations of inconsistency the judicial branch is using the NZBORA as a vehicle to explicitly critique parliamentary legislation that it believes fails to show adequate concern for individual rights, reflecting a constitutional assumption that the rights instrument should operate as a functional restraint on legislative power. 

And I think the Court's approach bears that analysis out. The rights in the NZBORA are so important that remedies need to be attached to them - even when the rights infringement has occured because of parliament's clearly enunciated intent. Allowing such rights infringements to take place scott-free (in legal terms) would be to undermine the very point and purpose of the rights instrument itself. So the declaratory remedy emerges from the very nature of the NZBORA itself.

However, having established a broad power in theory to issue declarations of inconsistency, the Court of Appeal then set about reining things back in. The general fear, which I think is warranted, is that the judiciary does not want to become (to paraphrase Attorney General Chris Finlayson) "some kind of imperial senate" that can review every bit of legislation Parliament enacts and sternly rebuke it for doing things the courts think inappropriate. 

So the Court of Appeal set about putting in place a bunch of restrictions that will apply to future applications for a declaration of inconsistency. They emphasised the remedy's purely discretionary nature - there is no right to get a declaration even if some legislation imposes a demonstrably unjustified limit on a NZBORA guaranteed right. They emphasised that there are other, lesser remedies (such as interpreting legislation to avoid potential rights inconsistencies, or sotto voce "indicating" that an inconsistency exists rather than formally declaring it) that are to be prefered where available.

And finally, the Court looked at Mr Taylor's ability to personally ask for the declaratory remedy. The problem is that Mr Taylor already couldn't vote prior to 2010, because the law in place at that time also disqualified him (as his sentence was for more than 3 years). So what "standing" does he have to bring the claim before the courts, as the law change didn't actually affect his rights as they were at the time?

Well, says the Court, he has none. The Court clearly doesn't want the declaration of inconsistency remedy to become a vehicle allowing every busybody individual to run to court to challenge her or his legislative bête noire. Instead;

[166] Standing matters in incompatibility proceedings because courts will not embark upon general inquiries into conflicts between legislation and protected rights. Accordingly, a claim for a [Declaration of Inconsistency] should not ordinarily be entertained unless the plaintiff’s protected right is affected on the facts, in the sense that but for the limitation the official conduct complained of might plausibly have breached the right.

So if the case had been brought in Mr Taylor's name alone, it should have been thrown out. But fortunately there were another four prisoners who brought the case alongside Mr Taylor for whom no such standing problems arose - they all were serving sentences that would have allowed them to vote, but for the 2010 law change. And so the Court of Appeal then delivered its killing blow to the Crown:

[185] What can be said is that because it underpins equality and sustains consent to government, the right to vote is a core prerogative of citizenship in a free and democratic society. The undiscriminating limitation imposed by the 2010 Act on so central a right demanded justification. None was forthcoming. The record shows that the legislature knew of the inconsistency at the time, and our attention was drawn to no developments in policy, or in other jurisdictions, that might lead it to reappraise the 2010 Act independently of this litigation. In these circumstances, it was not unreasonable to conclude that a [Declaration of Inconsistency] was the appropriate way both to convey the Court’s firm opinion that the legislation needs reconsidering and to vindicate the right. 

[186] We conclude that it lay within Heath J’s discretion to make a [Declaration of Inconsistency] on the application of Mss Ngaronoa, Wilde, Fenton and Thrupp. We consider he was right to do so. 

So the Crown's appeal was dismissed, and Heath J's declaration remains in place:

Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act. 

Well, baby, we've come a long way ... so if you've made it this far in the post I'm going to assume you're enough of a legal nerd to enjoy a few final insider-baseball points from the Court of Appeal's judgment.

I begin with this great bit of judicial shade throwing towards Australia's High Court (which, unlike our "High Court", really is their "High[est] Court"):

[61] That brings us to [the Australian High Court decision in] Momcilovic, on which Mr Rishworth relied. In our opinion the judgment evidences what Mr Butler aptly described as Australian constitutional exceptionalism. Making that very point, French CJ and Gummow J cautioned against undiscriminating reliance upon authorities from jurisdictions (such as New Zealand) where, as Gummow J put it, “Diceyan notions of parliamentary sovereignty remain influential”.

Take that, you Australian weirdos! Just as you refuse to let our citizens settle easily into your community, we won't let your bizarre views on a strict constitutional separation of powers infect our governing arrangements!! Keep that arid and doctrinally rigid stuff on your on side of the ditch, mates!!!

Then, a little later on, the Court of Appeal took a look at what New Zealand has been saying to the U.N. Human Rights Committee about our commitment under the ICCPR to provide effective domestic remedies for the violation of human rights: 

[90] In reporting, over the years, on New Zealand’s compliance with the ICCPR, the New Zealand delegation has referred to the comments in the New Zealand cases about the Court’s duty to identify inconsistencies, and has also noted the [Declaration of Inconsistency], that Thomas J would have had the Court make in Poumako. Although the reports do not consistently acknowledge the jurisdiction to make a [Declaration of Inconsistency], it was acknowledged in the 22 March 2016 report by New Zealand’s delegate, who reported to the monitoring body that “although there were no legislated remedies under the Bill of Rights Act, the courts had established a range of remedies, including ... a declaration of inconsistency”. 

The Court allowed the spectacle of the NZ Government going overseas and proudly waving the existence of declarations of inconsistency as evidence of our commitment to meeting our international human rights obligations, whilst then resolutely fighting in the domestic courts against the remedy's recognition, to pass without further comment. As shall I, for it hardly needs any elaboration.

And finally, a quick word on authorship. The reasons for the Court are given in a single judgment (thank you Court of Appeal! Take note, Supreme Court!!), appearing under the joint names of Wild and Miller JJ. If this is not Wild J's last word from the bench following his retirement in March, it must be very close to it. 

Not a bad note to go out on, really. Legum servi sumus ut liberi esse possimus.

Comments (11)

by Steven Price on May 30, 2017
Steven Price

"...the Court of Appeal then set about reigning things back in". Is this an assertion of judicial sovereignty?

by Andrew Geddis on May 30, 2017
Andrew Geddis

@Steven,

Oops! I meant "...the Court of Appeal then set about raining things back in". 

It's an assertion that the judiciary is keeping a weather eye on the situation. 

by mudfish on May 30, 2017
mudfish

Um... rein perhaps, as in deer. Oh dear.

by Steven Price on May 30, 2017
Steven Price

Nitpicking aside, thanks for a typically thoughtful and readable post.

Now, given the "firm opinion", formally expressed, of a full bench of our second-top court, that the legislation needs reconsidering, what odds that Parliament will reconsider it?

Shorter odds on a further appeal? Maybe they can find some damned judges who won't get above their station, and won't have the impertinence to label a law irrational just because it's, you know, irrational.

by Moz on May 30, 2017
Moz

Am I right to assume that since you didn't mention any actual remedy that one is not available? Viz, this is explicitly not a declaration that any prisoners supposedly disqualified by the legislation being challenged can now vote?

If so, two things: makes the whole BORA a bit useless, dunnit? It's just sauce for lawyers with no practical use to people affected by violations. Second, seems like a good argument for reining in parliament via constitution or some other instrument short of the guillotine. Why is it only Maori who get to say to Parliament "yez fuctit, bedda fixit"?

by Moz on May 30, 2017
Moz

(sorry, the possiblity of that coming across as racist occurred to me just after submitting. I was trying to channel Fred Dagg in contrast with the language used to render supposed 'rights' completely useless. It's all very "my learned colleague is no doubt aware that in Smith vs Chalmondeley the latter point was deemed..." and no you still can't vote)

by Andrew Geddis on May 30, 2017
Andrew Geddis

Shorter odds on a further appeal?

If I were cynical, I'd note that a further appeal keeps this sub judice beyond the next election, whereupon it may possibly become a problem for a Labour-Green governing arrangement, which then will allow National to savage them as being soft on criminals (which is the only reason why the law was passed in the first place).

Fortunately I don't share in that sort of cheap Wellington, Thorndon-bubble cynicism. More likely, Chris Finlayson doesn't like having judges purporting to tell him what to do and so they'll appeal for that reason.

by Andrew Geddis on May 30, 2017
Andrew Geddis

@Moz,

Yes - this is the peculiarity of a Declaration of Inconsistency as a "remedy". The original law carries on in force ... prisoners still can't vote. But the Courts are formally/officially saying that this law is really bad! and they really hope that the Government/Parliament takes note and does something about it. And then we hope that the Government/Parliament at least rethinks the issue (because isn't that what a good Government/Parliament would do, having been told a law is really bad!).

But if it doesn't? Well ... there's nothing more the Courts can do about that. It's up to us. 

by Graeme Edgeler on May 30, 2017
Graeme Edgeler

More likely, Chris Finlayson doesn't like having judges purporting to tell him what to do and so they'll appeal for that reason.

They didn't tell him what to do, they confirmed that he was right!

by Andrew Geddis on May 31, 2017
Andrew Geddis

@Graeme,

They confirmed he was right when he had his Attorney General hat on. But they're telling him what he (should) do when wearing his MP hat.

by BeShakey on June 06, 2017
BeShakey

Any thoughts on a legislative requirement that parliament reaffirm such legislation within a fixed timeframe (perhaps with a supermajority)? If they failed to do so (or lost the vote) the legislation would be repealed. Would this be a useful fix short of allowing the court to strike down legislation? Effectively requiring the parliament to reaffirm that yes, it really does want to unreasonably limit the rights of some people. Seems like a more effective remedy than the status quo.

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