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Taylor v AG: Prison voting law inconsistent Bill of Rights

[Full judgment: TaylorvAttorneyGeneral.pdf]

24 July 2015

MEDIA RELEASE

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.

TAYLOR V ATTORNEY-GENERAL [2015] NZHC 1706

Overview of the case

Five serving prisoners sought a declaration from the High Court that a blanket ban on prisoner voting that has been in force since the enactment of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 breached the right to vote set out in s 12(a) of the New Zealand Bill of Rights Act 1990. Before the 2010 Amendment Act, only prisoners serving sentences of three years or more were prohibited from voting. Since 16 December 2010, any prisoner who is sentenced to imprisonment loses the right to vote. The High Court held in favour of the prisoners, and made a “declaration of inconsistency” – that is, a formal order that the legislation is both inconsistent with the Bill of Rights and unable to be justified under that Act.

The law and the issues

The Bill of Rights sets out individual rights guaranteed by the State. Included among them is the right to vote, which is of fundamental importance in a democracy. Section 5 of the Bill of Rights recognises that rights may be qualified, but only if the limits are reasonable and can be “demonstrably justified in a free and democratic society”. However, even if a Court finds that Parliament has placed unjustified limits on rights, it still has to apply the law.

The Bill of Rights does not provide any express remedy when unjustified limits are placed on rights. Instead, the New Zealand courts have developed remedies – for example, financial compensation – to respond to cases in which the State breaches individual rights. This is done to recognise the purpose served by the Bill of Rights, namely affirmation of fundamental rights.

The issues for the High Court in this case were whether the blanket ban on prisoner voting was an unjustified limit on rights and, if so, whether a declaration of inconsistency was an available remedy.

The result

The High Court found that the law was an unjustified limit on rights. Indeed, the Attorney-General had already concluded that in his report to Parliament before the law was passed. One reason is that the law has arbitrary consequences. For example, a low-level offender given a short prison sentence coinciding with a general election loses the right to vote, whereas a serious offender imprisoned for two and a half years between elections can still vote. Someone who goes to prison because he or she has no suitable home detention address loses the right to vote, whereas someone sentenced to home detention does not.

The High Court also found that a declaration of inconsistency was an available remedy for breaches of the Bill of Rights. This is the first occasion on which such a declaration has been made. The Court also held that this was an appropriate case in which to make a declaration, given the special importance of the right to vote and the unjustified limits placed on that right by the total ban on prisoners voting.

[Full judgment: TaylorvAttorneyGeneral.pdf]

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