Approximately one year ago, on 24 July 2015, the New Zealand High Court issued a ground-breaking judgement. Taylor v Attorney-General (2015) declares the Elections Act to be inconsistent with New Zealand’s Bill of Rights Act (NZBORA). NZBORA describes the human rights and fundamental freedoms necessary to a free and democratic society, including the ‘right to vote’. However, few prisoners are allowed to vote in New Zealand. If someone is in jail on voting day, they likely cannot participate in the election. This blanket ban is not sensitive to the length of sentence; it does not depend on the gravity of the offence, and it disenfranchises one of the most vulnerable populations of citizens in New Zealand.
Written by Justice Heath, the Taylor judgement denounces the ban on prisoner voting as inconsistent with the values of a ‘free and democratic society’. The judgment is a brave affirmation of New Zealand’s moral and legal foundations. However, there is a risk that Parliament will ignore the message sent by the Court and, in continuing to violate the rights of prisoners, stifle the effectiveness of a novel judicial remedy. I should say clearly that the importance of Taylor is twofold. First, prisoners should be allowed to vote. Second, and this is the point of constitutional importance, the judicial declaration of inconsistency is an important and novel remedy that should not fall into desuetude through Parliamentary lassitude.
New Zealand courts cannot use NZBORA to ‘strike down’ legislation. Instead, NZBORA relies for its effectiveness primarily upon ‘parliamentary mechanisms’. The Attorney-General is obliged to report to Parliament on any provision of a bill that the Minister believes to be inconsistent with NZBORA. In general, the Attorney-General’s report contains the NZBORA ‘vet’ of the bill that is conducted during the bill’s drafting stage. Cabinet receives that vet before it puts the bill before Parliament. Therefore, Cabinet has been notified of a bill’s NZBORA inconsistency, and decided to proceed nonetheless, prior to Parliament receiving the Attorney-General’s report. In a Cabinet-dominated legislature, the Attorney-General review is simple ‘theatre—a prepared script performed by actors with clear outcomes and directions from the front benches’.
In response to rights-violating legislation, the powers of New Zealand’s courts are very limited. As a novel remedy, the ‘declaration of inconsistency’ notifies Parliament, and the nation, of an unjustified (in the judgement of the court) infringement of rights. In the UK, such declarations are an effective remedy because the UK Parliament normally responds to a declaration of rights ‘incompatibility’ by repairing the offending legislation. That British balance between the values of rights-protection and parliamentary democracy depends upon Parliament’s willingness to listen to the courts. But, unlike most British declarations, Taylor has yet to engender much Parliamentary interest. In response to 3 December 2015 query from the Justice and Electoral Committee as to whether the Minister of Justice would, in light of Taylor, support legislative change, the Ministry simply restated the points drawn from the Attorney-General’s 2010 report. The Committee then addressed the matter in passing in its report to Parliament. That report does not reflect that the constitutional importance of the infringed rights, it does not describe the substance of the arguments in Taylor, nor indicate that the declaration warrants Parliament’s attention. Instead, the matter is dispensed with by a majority vote on a Government-controlled committee.
If the declaration is to become an effective remedy, we should consider how we might improve New Zealand’s constitutional system. Following the British model (and that of New Zealand’s Human Rights Act), Parliament could create a new Ministerial reporting obligation. In the event of a declaration, the Minister responsible for the inconsistent legislation would be required to report to Parliament. That report would have three components. It would indicate that there has been a declaration, describe the substance of the court’s judgement, and set out the nature of any proposed legislative response.
This initiative would have the following benefits.
First, the existence of a reporting mechanism would signal to Parliament that a judicial declaration of inconsistency involves the exercise of an appropriate and weighty judicial authority. The political branch of government would enact the reporting duty, preferably within NZBORA. Parliament would thereby countenance the judiciary’s declaratory power and normalise the need for a Parliamentary response to a declaration of inconsistency.
Second, we must distinguish a Ministerial response to a judicial declaration from that of the Attorney-General’s report. The Attorney-General’s report offers an opinion on a bill that (usually) has Cabinet support. By contrast, the Ministerial report does not offer an opinion; it would report the legal fact of inconsistency. Furthermore, The Parliament receiving the Ministerial report will rarely be the same as that which enacted the legislation. The responsible Minister may have changed and may even be of a different party. Therefore, unlike the Attorney-General’s report, the Ministerial report may not confront a Cabinet already bent on rights-inconsistent legislation. This question of timing is particularly important. Under the present constitutional arrangements, Parliament often legislates in haste and without effective scrutiny. Urgency motions permit important bills to skip select committee hearings and government control limits the scrutiny offered by those committees. New Zealand’s unicameral system lacks an institutional body of ‘sober second thought’. There are clear benefits to a mechanism through which a subsequent Parliament might be encouraged to re-visit rights-inconsistent legislation.
Third, unlike the Attorney-General, the Minister in question will have an ongoing responsibility with regard to the application of the inconsistent law. The failure to remedy defects articulated in the Minister’s report would create an internal inconsistency between two aspects of the same Ministerial role and, one can imagine, those involved wishing to avoid such a position. After a judicial declaration, a Ministerial report indicating a continued intention to permit inconsistency would be scrutinised, both inside and outside Parliament. That scrutiny would benefit from the considered argument provided by the court’s judgement. Opposition parties would have an opportunity to take a public position on the question. Although they may not succeed, the public stance of the Opposition may have implications after a change in government. Further, a formal judicial finding of inconsistency may engender public interest in the issue. In the language of political costs, the Minister who fails to offer a remedy will hand the Opposition a weapon, both in Parliament and in the next election.
The Taylor declaration represents both an opportunity and a risk. The opportunity lies in the possibility of making New Zealand more respectful of the rights of citizens. The risk lies in the possibility that a novel judicial remedy will ‘wither on the vine’ for lack of parliamentary interest. To make judicial declarations of inconsistency effective, we should consider developing mechanisms designed to obligate parliament to attend to them.
Stephen Winter is a senior lecturer in Politics and International Relations at the University of Auckland.