- Date published:
7:48 am, July 25th, 2015 - 16 comments
Categories: Abuse of power, democracy under attack, human rights, law, national - Tags: andrew geddis, BORA, david farrar, democracy under attack, human rights, law, prisoners
Back in 2010 National were progressing the Electoral (Disqualification of Convicted Prisoners) Amendment Bill denying convicted persons in prisons on election day the right to vote. This Bill was against all advice, including that of their own Attorney-General Chris Finlayson who called the proposal “irrational” and “disproportionate”. One of the strongest critiques came from constitutional law expert Professor Andrew Geddis, who wrote:
This proposal is downright wrong in its intent, outright stupid in its design and (if finally enacted) would be such an indelible stain on the parliamentary lawmaking process as to call into question that institution’s legitimacy to act as supreme lawmaker for our society.
In 2013 a case was taken to challenge this law, and yesterday the High Court delivered its verdict:
Prisoners should be allowed to vote: High Court
The High Court issued a “declaration of inconsistency” today after considering a complaint from five prisoners who argued the extension of the ban on prisoners voting to cover all prisoners sentenced to imprisonment infringed the right to vote in the Bill of Rights Act.
The declaration alone does not mean Parliament must repeal the ban — the court noted that even where it finds Parliament has placed unjustified limits on rights. it still has to apply that law.
In his decision, Justice Paul Heath said the purpose of the declaration was to “draw to the attention of the New Zealand public that Parliament has enacted legislation consistent inconsistent with a fundamental right”.
It is the first time the court has issued a declaration of inconsistency in relation to the Bill of Rights Act.
Let’s cross live back to Prof. Geddis:
In a nutshell, his honour finds not only that the decision to remove the rights of prisoners to vote limits their right to vote (obviously!), but also that this decision cannot be “demonstrably justified in a free and democratic society“. That is to say, the effect of the measure is so arbitrary and inconsistent that it cannot rationally be defended … it is (to put it colloquially) a crappy thing to do.
Because, for the first time in NZ legal history,[…] his honour chose to formally declare the legislative provision inconsistent with the NZBORA. This is a pretty big deal, and here’s why.
First of all, Heath J’s decision doesn’t now give prisoners the right to vote. Section 4 of the NZBORA prevents that outcome by expressly saying that if other legislation is inconsistent with the NZBORA, then that other legislation remains in force and the Courts have to apply it. So despite Heath J’s views on the law’s merits, prisoners still cannot vote.
However, it does mark the judiciary’s formal legal finding that this law (while still the one they have to follow) is BAD LAW. Parliament has done something that a properly functioning legislature simply ought not to do – taken away peoples’ rights without having a good reason for doing so. And the High Court is looking them right in the eye and saying so. …
Naturally the Nats will ignore this ruling (and naturally David Farrar and Judith Collins are having a good laugh on Twitter). So we will keep a law on our books which has been found to breach human rights. Isn’t that another “proud” item to add to National’s legacy.
So with this being the 1st time a Court has felt the need to do this in NZ, it's official.
Most Human Rights Abusery Govt in History.
— Alex Coleman (@ShakingStick) July 24, 2015