Supreme Court Creates First New Bill of Rights Remedy in 20 Years

All people who have their rights violated by laws that cannot be justified under the Bill of Rights can now apply to the High Court for relief in the form of a declaration of inconsistency (DOI).

1. Many people are missing the point of the Supreme Court's ruling on 09 November 2018. Attorney-General v Taylor, Ngaronoa & Ors [2018] NZSC 104 Some say the decision on prisoner voting is worthless or insignificant because the claimants who won still cannot exercise their right to vote.

2. It is true the rights of the claimants in this case are unaffected by the Court's judgment in the short-term. This is because the Bill of Rights is not entrenched in our constitution, which means the superior courts cannot "strike down" rights infringing legislation as their counterparts can in Canada and the United States.

3. However, the immediacy of the effect of the DOI, is a short sighted view of the potential benefits of the Court's remedy. For example, the present government will be under pressure to repeal the blanket ban on prisoner voting before the next election or else it will be seen as complicit in the violation of a fundamental right declared by the Supreme Court. I believe the coalition cannot risk going into an election campaign doing nothing about this issue, in case they become the human rights violator like their predecessor.

4. The new remedy has unique and unanticipated consequences. It is clear that a DOI issued by the superior courts will attract media publicity and raise public consciousness of the specific right or freedom that has been violated by the State. Any incumbent government (no matter which political party) will face public, and possibly international criticism and pressure to change the impugned law.

5. Since there is no immediate effect of a DOI, and the law cannot be struck down by the judiciary, it triggers a remedy available in the United Nations. Under the Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR), the United Nations Human Rights Committee can decide "communications" (claims) by human rights victims who have exhausted their appeal rights in their own country without absolute relief. The Committee can formally declare that a country has breached the rights and freedoms guaranteed by the ICCPR, and publish the findings to all members of the United Nations. The infringing country is given 6 months to resolve the problem.

6. The most compelling and influential step in the process as far as a modern democracy is concerned is that refusing to take action in response to an edict by the UN will result in preventive and enforcement measures up to and including suspension from the General Assembly. Any reasonable leader of a free and democratic society would try to avoid the ignominy of an incriminating decision by the UN on the subject of human rights. As a result, I believe a government in a country like ours would try to amend the law if a failure to act upon the recommendations of the UN would result in adverse repercussions at the polling booth.

7. If a political party wants to lose widespread support from the voting public, then I believe it would ignore a DOI at its own peril. All current coalition parties voted against the 2010 amendment except for New Zealand First which was not elected to Parliament at the time. It was only National and Act party MPs who voted in favour of it. Therefore, every MP in the present government cannot afford to go into an election campaign in 2020 doing nothing about the law and knowing the discriminatory and racist implications of it. (Refer to parliamentary debates on the discriminatory impact of the legislation. Hansard, NZPD Electoral (Disqualification of Convicted Prisoners) Amendment Bill, Second Reading [Volume:667; Pages 14688 - 1469 20 October 2010. Hon. Hone Harawira).

8. The argument that a DOI might simply result in legislative inertia was a position taken by the minority in the Supreme Court.[1] Subsequently, the Minister of Justice, Andrew Little, stated in the media that amending the law is “not that much of a priority”[2], which seems to count in favour of the minority’s reasoning. The media's responsibility is to report the fact that the impugned legislation violates the rights and freedoms of the citizenry. From this point, it is the responsibility of the government to change the l aw, which is likely to depend on the position of the left-right political spectrum of the government of the day.

9. However, I do not believe the dynamics of this landmark judgment have been played out entirely. Time is a crucial factor with the new remedy, and the next general election is not far away. Therefore, if the present government intends to preserve the status quo, it would instruct the Solicitor-General (and thereby all lawyers at the Crown Law Office) to take the necessary steps to prevent the claimants from advancing and potentially succeeding with their remaining legal actions.

10. One cannot read too much into the actions or words of government, but in the Waitangi Tribunal on 30 November 2018, Crown counsel changed the Crown's position from opposing an application for urgency by the Maori claimants to taking a “neutral” one. That claim relates to the manner in which the absolute restriction on prisoner voting breaches the Treaty of Waitangi (te Tiriti o Waitangi) and its principles. (Refer Wai 2472 # 3.1.13: Submissions of the Crown in Response to Application for an Urgent Hearing, 30 November 2018 at para [10]).

11. What does this mean? It depends on which statement represents the prevailing position of the government. Is it that amending the law is truly not that much of a priority, or is it the change from opposing urgency it steadfastly maintained over a long period of time to taking a neutral position in one of its most important proceedings? At this stage, it seems the Crown’s statements cancel each other out. Therefore, the best one can say is to observe carefully the action or inaction of government in the short-term, and watch this space.


[1] Refer William Young and O’Regan JJ in Attorney-General v Taylor, Ngaronoa & Ors[2018] NZSC 104 as per link above.

[2] Radio New Zealand (RNZ) Prisoners' right to vote currently not a priority for Parliament, 09 November 2018, Andrew Little.