National’s law ruled a violation of human rights

Written By: - Date published: 7:48 am, July 25th, 2015 - 16 comments
Categories: Abuse of power, democracy under attack, human rights, law, national - Tags: , , , , , ,

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.

There were 53 submissions on the Bill, the only public submission in favour was from David Farrar (of course). In due course this abomination was passed by National and ACT.

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.

16 comments on “National’s law ruled a violation of human rights”

  1. joe90 1

    The late Martyn Finlay QC will be chuffed.

  2. Lanthanide 2

    Labour shouldn’t repeal this law specifically, but should amend the bill of rights act to give the courts the power to strike out a law, with 90 days notice to the government for them to implement an alternative, repeal it themselves or fix the broken parts.

  3. Save NZ 3

    This is a further example of the dangers of the TPPA. Although the judge is finding this arbitrary undemocratic law is a violation of human rights – they have no power to repeal it.

    Putting human rights and ethics in the hands of the courts will not help if fundamentally the law has been changed so that the courts can not or will not provide justice.

    • Mike S 3.1

      It’s not that they will not it’s that they cannot.

      NZ is unique amongst developed western democracies in that in NZ parliament is sovereign and the courts are subservient to parliament. So judges must abide by the statutes set by parliament even if they know they are wrong.

      There are many examples of statutes enacted which are declared inconsistent with the Bill of Rights Act by whoever is the Attorney General at the time, but government still enacts them anyway. Unfortunately our MP’s reign supreme and what they say goes.

      Since 1990, fifty nine section 7 reports have been filed. As far as I’m aware, the government tends to ignore the advice and move ahead with enacting the legislation.

  4. Rosemary McDonald 4

    Actually….Prof. Geddis has written at length about another case in which a specific group went to the Human Rights Review Tribunal claiming discrimination under NZBORA.

    They were represented by the OHRP…and won.
    The Government took it to the High Court….and lost.
    The Government took it to the Appeal Court….and lost.

    The Government then chose NOT to take the matter to the Supreme Court, instead after some discussion and ‘consultation’, passed legislation that effectively told the the Courts….butt the hell out of our business.

    The legislation made what three legal venues had found a breach of the NZ Bill of Rights Act …legal.

    And in a particularly nasty twist, enacted legislation which removed the right of this group to EVER have the matter examined by the Courts again.

    BUT…another case went through the Courts (because it had stated before the shit legislation had been passed (under urgency, no select committee).

    That case WON in the High Court.
    So, of course, the Government Appealed…and LOST.

    The Appeal Court telling the Government…

    “Parliament introduced [the New Zealand Public Health and Disability Amendment Bill (No 2)] under urgency without prior notice only one month before Mrs Spencer’s judicial review proceeding was heard in the High Court. It contained a number of features that are traditionally regarded as being contrary to sound constitutional law and convention – on the Ministry’s interpretation it has retrospective effect, authorises discriminatory policies, withdraws rights of judicial review and access to the Tribunal and did not go through the normal Parliamentary Select Committee and other processes. While … the courts must respect and apply [the New Zealand Public Health and Disability Amendment Act (No 2) 2013], like any other legislation, … if the words have not achieved the result which its promoters intended the courts should not seek to fill the gaps as a means of dealing with inadequate drafting.”

    http://pundit.co.nz/content/i-think-national-just-broke-our-constitution
    http://pundit.co.nz/content/theres-none-so-deaf-as-they-that-will-not-hear

    “So we will keep a law on our books which has been found to breach human rights.”

    Yes, but please, it is not quite the ‘first time’ the Courts have told the Government they have passed BAD legislation.

    • r0b 4.1

      Interesting, thanks. I was going off the Herald piece quoted “It is the first time the court has issued a declaration of inconsistency in relation to the Bill of Rights Act”.

      • Rosemary McDonald 4.1.1

        “I was going off the Herald …”

        Hah! I went off the Herald a long time ago.

        Disability issues tend to fall below the radar. I have said before (with boring monotony!) this wee David and Goliath battle, with potential constitutional ramifications (as Mr. Geddis implied) has shown just how nasty and vindictive this government can be when their authority is challenged in the Courts.

        As one of the players said during the Spencer hearing…the Part 4A amendment to the PHDAct was the “government wresting control back from the Courts.”

        And one Crown Lawyer was heard to say to the Appeal Court… ” I won’t bore you with BORA.” Big laughs all round.

        • Flashing Light 4.1.1.1

          Yes, but please, it is not quite the ‘first time’ the Courts have told the Government they have passed BAD legislation

          It is the first time a NZ Court has issued a formal declaration that legislation breaches the NZBORA. That’s a step up from obiter (or aside) comments in the course of a judgment that Parliament has acted badly – as were made in the Spencer decision. So while it is true that NZ Courts have in the past whispered to Parliament that it’s done wrong, in Taylor the High Court has shouted.

  5. Heather Grimwood 5

    Before 2014 election while with the ‘Big Red Bus’, stopped for refreshments, and met a group of young gents who weren’t sure if they were enrolled. While I was checking, one called that they were not allowed to vote, and I realised they were from a prison van/work party. Faces fell. They asked if they could add signatures to sides of our bus.
    I felt like weeping. These were but kids and such an unjust, unnecessary rule is surely most unhelpful to rehabilitation.
    Incidentally, I hadn’t realised the law had been changed, but it proved to be so….remiss on my part but possibly there had not been great fanfare.

  6. AmaKiwi 6

    Why is it acceptable for the NZ dictators of the day to breach human rights but the courts will not / cannot overturn their dictatorial actions?

    Why is it tolerable that the NZ dictators of the day repeatedly spit in the face of the people’s will as expressed in referendums?

    Is NZ’s “elected dictatorship” a legitimate form of government we should embrace or should we throw it out and replace it with a purer form of democracy?

  7. Ad 7

    Very proud of our judges today.

    A great opportunity for Labour to come out and state that they will enable prisoners to vote. There’s tens of thousands of them.

    I don’t think its possible under MMP for any future government to entrench BORA to a 2/3 majority.

    But there is plenty that a good progressive government can do to turn away the most venal and cruel of our punishment-loving society that seeks to strip people of far more of their rights than is needed.

    Labour, let them vote.

    • AmaKiwi 7.1

      @ Ad

      So our “punishment-loving society” is to blame, not a system of government in which PMs are effectively elected dictators?

      Do you recall a groundswell of public opinion (i.e. “society”) saying prisoners should not vote? I don’t. It came from the top, not from the people.

      Power corrupts. It corrupts the dictators of the Left as well as the Right.

    • Rosemary McDonald 7.2

      Prior to the last election, there was a great opportunity for Labour and the Greens to state in their manifesto that if elected they would repeal the Part4A amendment to the Public Health and Disability Act that legalised proven discrimination against people with disabilities and their families AND removed our right to ever take this issue back for judicial review in ANY venue.

      Despite my pathetic emails to both parties on this issue, asking them to make this one of their bottom line policies….neither of them chose to do that. (or enter into any discussion about it)

      There are hundreds of thousands of disabled people in NZ….all of them potential voters. Despite both parties on that dreadful day (17th May 2013) ranting and posturing in the House about this shitty piece of legislation…neither of them were prepared to make it an election issue.

      I did not vote for them.

  8. Tigger 8

    Keep it up Judith. You’ll never be the elected PM of NZ and that’s killing you.

  9. Smilin 9

    This is the problem with law making by any govt, political bias ruling over the power of the judiciary to make a more democratic consensus
    on the validity of any proposed law change by the govt

  10. Coaster 10

    It would not surprise me to see more legislation excluding other groups from the right to vote.

    beneficiarys.
    those of lower than a certain iq threshold
    those on low income
    those with terminal illnesses (they could justify that by saying the wont be around to see any changes implemented.
    and numerous more.

    I was shocked when this law was passed its very similar to the refusal to allow cantabrians to vote in a new regional council.

    The average jo bloggs doesnt get that attacks on our democracy are very very dangerous and set very bad precedence.

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