It’s a pity that the government is not legally bound to respond to a High Court ruling that the present law denying a sentenced prisoner’s right to vote is “unable to be justified” under the New Zealand Bill of Rights Act.
Last Friday’s ruling
was the first time a Court has issued a “declaration of insistency” whereby a law is deemed to be contrary to the Bill of Rights Act. Justice Heath said
his formal declaration
was “to draw the attention of the New Zealand public that Parliament had enacted legislation [in 2010] inconsistent with a fundamental right.” He said “the inconsistency arises in the context of the most fundamental aspect of a democracy, namely, the right of all citizens to elect those who will govern on their behalf.”
The logical next step would be for the government to respond to the ruling, but it is keeping quiet.
A private members bill I had in the Parliamentary ballot back in 2010
would have required a response. Under my New Zealand Bill of Rights Amendment Bill the Attorney-General would have been required to table in the House any “declaration of inconsistency” issued by the Court. Within the six following months the government would be required to inform Parliament what “action the government intends to take” regarding the declaration of inconsistency “and the reasons for that course of action.”
in my Bill required Parliament, when there is some conflict with the Bill of Rights, to investigate “whether there are less restrictive means reasonably available to achieve the purpose that the [Bill of Rights] limiting measures seeks to achieve.”
My Bill would have made specific provision for judicial “declarations of inconsistency” but Justice Heath determined that he was entitled to make such a ruling without it being formally written into law. He cited the existing provision in the Human Rights Act 1993, whereby the Human Rights Review Tribunal [a lower jurisdiction than the High Court] can already make such a declaration when a law “is inconsistent with the right to freedom of discrimination affirmed by section 19 of the New Zealand Bill of Rights Act 1990. “
My Bill wouldn’t have given the Courts the power to simply annul legislation, as the US Supreme Court can do under that nation’s Bill of Rights. That would be a step too far for most New Zealand MPs. But there are were
other measures in my Bill
to help attune MPs to human rights concerns. For every Bill coming before Parliament (not just some Bills as now) the Attorney-General would have to explain any contravention of the Bill of Rights. Additionally, Select Committees would have to report Bill of Rights conflicts flowing from any amendments they make to legislation.
The extra attention our Courts are now giving to Bill of Rights matters can help slow the erosion of our civil liberties which occurs when MPs play excessive attention to the “law and order” lobby.
In conclusion, I’d like to salute Arthur Taylor, the prisoner who brought the case to the High Court under such difficult circumstances. The pressure should now go on the government to repeal the 2010 legislation denying prisoners their voting rights. Surely, it will help in rehabilitation if prisoners are thinking about the big social and environment issues confronting our society and, as citizens, exercising their fundamental right to vote.
[My New Zealand Bill of Rights Amendment Bill is still in the parliamentary private member’s bill ballot under the name of
current Green MP David Clendon