Decided 24 July 2015 Transcript(s) Available here Judge(s) sitting Heath J Ruling court High Court of New Zealand | Citation(s) [2015] NZHC 1706 Prior action(s) [2014] NZHC 1630 End date July 24, 2015 | |
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Taylor v Attorney-General [2015] NZHC 1706 is a New Zealand High Court judgment which made a formal declaration that a statute that prohibited prisoners from voting is inconsistent with the New Zealand Bill of Rights Act 1990. This was the first time a court had recognised that a formal declaration of inconsistency is an available remedy for statutory breaches of the Bill of Rights. Section 5 of the Bill of Rights Act states, "Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." In his decision, Justice Heath declared that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 which stripped all voting rights in general elections from prisoners was an unjustified limitation on the right to vote contained in s 12 of the Bill of Rights.
Contents
Background
Justice Heath summarised the background to the legal challenge being, "As a result of an amendment made to the Electoral Act 1993 (the 1993 Act) in 2010, all prisoners incarcerated as a result of a sentence imposed after 16 December 2010 are barred from voting in a General Election." In response to disenfranchisement, five serving prisoners including career criminal Arthur Taylor "sought a formal declaration from this Court that the prohibition is inconsistent with s 12(a) of the Bill of Rights". The Attorney-General in his 2010 report on the law, mandated by section 7 of the Bill of Rights Act requiring that any inconsistencies with a Bill of Rights right be brought to the attention of Parliament, had concluded, "the blanket disenfranchisement of prisoners appears to be inconsistent with s 12 of the Bill of Rights Act and that it cannot be justified under s 5 of that Act".
Prior to the review proceeding to a substantive hearing the Attorney-General had tried unsuccessfully to have the challenge struck out on the grounds courts had no jurisdiction over this matter and that any relief given "would breach the fundament principle of comity applying to the relationship between the judiciary and Parliament".
Judgment
In his judgment Justice Heath adopted the reasons given by the Attorney-General in his s 7 report to Parliament on the Electoral (Disqualification of Sentenced Prisoners) Amendment Act's inconsistency with the Bill of Rights Act. Reasons given by the Attorney-General in his report included that "The objective of the Bill is not rationally linked to the blanket ban on prisoner voting. It is questionable that every person serving a sentence of imprisonment is necessarily a serious offender. People who are not serious offenders will be disenfranchised."
Justice Heath added that there was also an inconsistency with the right to vote in that the law created an arbitrary disparity between those sentenced to imprisonment and those to home detention;
As a result, Justice Heath made a declaration mirroring the declaration the Attorney-General had made in his s 7 report;
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.
In coming to his conclusion Justice Heath noted,
Significance
This was the first time a court had recognised that a formal declaration of inconsistency is an available remedy for statutory breaches of the Bill of Rights. Arthur Taylor, in a recorded statement to Radio New Zealand after the verdict said, "His Honour Justice Heath's very courageous decision strikes a strong blow for the rule of law, not only for prisoners, but all other New Zealanders, in upholding their fundamental rights against even the Parliament". Andrew Geddis, law professor at Otago University commented that the decision shows the ban on prisoners voting is, "bad law, so even though it still exists and has to be applied, it's not a good one".