On Friday 5 Judges of the Court of Appeal dismissed the Government’s appeal against Justice Heath’s High Court declaration that the 2010 law that barred all prisoners from voting breached the Bill of Rights and cannot be justified in a free and democratic society. (The Attorney-General v Taylor  NZCA 215).
This case wasn’t just important for prisoners because as a result of it governments who use their majority in Parliament to pass laws that infringe the basic and most fundamental rights of New Zealanders, as set out in the Bill of Rights, can now be taken to court and those rights vindicated. Non-lawyers might be surprised to learn that isn’t already the case.
Although this case concerned the voting rights of prisoners it illustrates well that the Bill of Rights can be overridden and the rights enshrined there (including the Rights to Life and Security of the Person — sections 8 to 11; Democratic and Civil Rights — sections 12 to 18; Non-Discrimination and Minority Rights — sections 19 and 20; Rights to be Free from Unreasonable Search and Detention and securing fair trial rights – sections 21 to 26; and Right to Justice – section 26) are at the mercy of any Government with a majority in Parliament.
Section 12 of the Bill of Rights has always said; `
Every New Zealand citizen who is of or over the age of 18 years has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot.
Pretty clear you would think, notably it doesn’t say every NZ citizen except prisoners! You will also note that it is supposed to enshrine some pretty fundamental rights that are essential to the functioning of our democracy — equal suffrage and secret ballot.
So if they Government had got way scot free with tampering with part of section 12, the dangerous precedent was set that they override anything in the Bill of Rights.
Unfortunately, much of the mainstream media and legal/electoral law commentators (with the notable and commendable exception of Otago Law Professor Andrew Geddis) failed to realise that undermined all New Zealander’s basic rights in the sense of making it easier to change or remove them once the precedent was set that they could be changed or removed with seeming impunity.
Predictably (especially as Act/National believes most of the 10,000 prisoners would vote for parties other than them if they had the vote) Bill English came out and said:
”Look if [the Judgment] raises significant policy issues, went look at it them but up to now we haven’t seen reason to change the law.”
Well Bill, put partisan politics aside and read what six Judges in two different Courts have said about the ban on prisoner voting not to mention several newspaper editorials and Andrew Geddis – probably NZ’s most authoritative commentator on electoral law – and you’ll see ~ plenty of reasons why this very bad law needs to be repealed.
You might also want to read what Justice Ellis said about it in a case l took to the High Court in 2014, including that it was “constitutionally objectionable”} Unfortunately because we haven’t got a constitution the Courts cannot strike down this bad law but there can be absolutely no doubt that they would have if they did have that power.
The courts in most countries we like to compare ourselves with, in Canada, Australia, South Africa, all of the 27 countries in the European Union, the UK and many others have already ruled unlawful or struck down as unconstitutional blanket prisoner voting bans where they existed in those countries.
So has the European Court of Human Rights. International treaties the Government has given a solemn undertaking to abide by, such as the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights, are also being flouted with attendant
damage to New Zealand’s reputation as a country that respects and upholds human rights.
No matter what sort of gloss/spin you put on it a country has no moral authority to take other countries to task when those other countries can point to you allowing a law that takes from thousands of New Zealand citizens a fundamental right, and which your highest courts have formally declared cannot be justified in a fee democratic society.
Other countries (hello Zimbabwe, Fiji and others that NZ has condemned for human rights breaches) can justifiably say:
“You ought to be fixing human rights breaches at home before preaching to us – you have a law that no free and democratic society would tolerate — your own courts at the highest level have said so.”
One of the Bill of Rights most important functions is to protect minority rights from being overridden by an oppressive or overzealous majority.
How far is that majority able to restrict the rights and freedoms of minorities?
And before you say “But the majority in New Zealand can be expected to exercise restraint and not oppress minorities.” Reflect on the experience of Maori the victims for most of our history to what they rightly saw as an oppressive majority overriding their rights as Tangata Whenua. This in the face of the Crown agreeing in the Treaty of Waitangi to respect and uphold their rights.
The prisoner voting ban law was simply another law passed by the majority to take away the rights of a minority one that they no doubt saw was powerless and vulnerable just as Maori were seen, at least until more recent and enlightened times when they were able to begin enforcing their rights through the courts.
Just so you are in no doubt Bill, the declaration Justice Heath made and which the 5 Judges upheld on Friday is a formal remedy and solemn declaration informing all New Zealanders that Parliament has enacted legislation incompatible with a fundamental right and serves the important function of bringing to the attention of the executive branch of government that the Court is of the view that there is a measure on the statue book which infringes protected rights and freedoms, which the court has decided is not a justified limitation.
The court is, in the nicest possible way, advising you that the blanket voting ban on prisoners voting is a bad law that no self-respecting Parliament would pass or allow to remain on the law books.
Once Crown Law gets over its having lost the argument on this issue in every court it has gone to, it might want to advise the Government that it must repeal this law.
And if it doesn’t. l have another case before the Court of Appeal (heard and argued in March —- reserved decision). See para. 145 of the Court Appeal Judgement )that if the Court accepts it will mean another significant first – the Court deciding that it has the jurisdiction to actually strike the prisoner voting ban down .
This would be on the grounds that interfering with the qualifications of electors ( the prisoner voting ban took away the existing right to vote of several thousand citizens ) required a 75% majority in Parliament to pass.
As the Act/National majority that passed it, against the opposition of all other parties including Peter Dunne , was only 2 votes then it were not validly passed by Parliament so is invalid legislation.
One thing the Government can be certain of is that this issue is not going away , so the sooner they bite the bullet and right the wrong the better for everyone – as well as our international reputation and our lucrative international trade deals which are usually linked to human rights.
Arthur Taylor is The Daily Blog’s Prisoner Rights Blogger who is currently serving time inside prison.