The Court of Appeal affirmed today, in Attorney-General v Taylor, that the High Court does have the authority to issue a declaration that a statute is inconsistent with the New Zealand Bill of Rights Act.
The full bench of the Court of Appeal released its judgment today. In dismissing the Crown’s appeal it affirmed the position advanced by the Human Rights Commission in our submissions that the High Court does have the authority to issue a declaration that a statute is inconsistent with the NZ Bill of Rights Act (BORA).
The Court of Appeal’s judgment confirms that a declaration of inconsistency (DOI) is a BORA remedy. As such, it is a major constitutional law decision.
Summary of the Court’s findings
In finding that the higher courts have jurisdiction to make a DOI, the Court of Appeal held:
The language and purpose of the BORA supports a DOI remedy, as does case law.
The common law jurisdiction of the higher court provide the source for the remedy. This jurisdiction enables the higher courts to answer questions of law, which extends to incompatibility between legislation and a protected right.
In some cases, a DOI may be needed to meet New Zealand’s ICCPR commitments to provide an effective remedy. This consideration, in itself, justifies establishing the DOI remedy.
The power to issue a DOI is discretionary and must be exercised with restraint. In some case it may be enough for the Court to indicate an inconsistency using the legal test established in the case of Hansen. However, there may be circumstances where a court may go further and issue a DOI to emphasise that the legislation needs reconsidering or to vindicate the right.
The section 7 Attorney General BORA report on the Electoral (Disqualification of Convicted Prisoners) Bill was available to the Court to consider. In coming to this finding, the Court of Appeal held that a Court may examine the parliamentary record to the extent that it is necessary and useful, but it must not question parliamentary treatment of the matter in issue.
Background to the case
In 2015, Arthur Taylor, an inmate at Paremoremo prison, and others brought proceedings in the High Court against the Crown seeking a judicial declaration that section 80(1)(d) of the Electoral Act – which disqualifies prisoners from voting - is inconsistent with section 12(a) the New Zealand Bill of Rights Act, which provides that all people aged 18 and over have the right to vote in a general election.
The High Court judge hearing the case, Justice Heath, found in favour of the Arthur Taylor and the other plaintiffs and issued such a declaration, the first time a New Zealand judge has declared a statute to be inconsistent with the BORA.
The Crown accordingly appealed.
Does the Court of Appeal’s decision change the law on prisoner voting rights under the Electoral Act?
No – it just confirms that the Court may declare that it is inconsistent with BORA. It is now for Parliament to respond.
It is important to note that the fact that the Electoral Act is inconsistent with BORA was not at issue in the Court of Appeal hearing – all parties accepted that. In fact, the Attorney General reported in 2010 that the Electoral (Disqualification of Convicted Prisoners) Bill - which brought about the current law - was an unjustifiable limitation on the rights of prisoners under s 12(a) BORA.
In its submission to Parliament in 2010, the Commission also opposed the Electoral (Disqualification of Convicted Prisoners) Bill on the basis that it is both inconsistent with BORA and New Zealand’s international human rights obligations.