Amicus: The Changing State of Rights in New Zealand

By Rachel Buckman

Should prisoners have the right to vote? A controversial question, and one that has circulated in public discussion ever since a blanket ban was enacted in 2010. Perhaps the change would have faded into the legislative background if it were not for the legal battle that followed. A group of prisoners, including ‘jailhouse lawyer’ Arthur Taylor, challenged the ban and are currently having their case heard before the Supreme Court.

While this case has secured frequent media headlines, it is misleading to portray it as only about whether prisoners can vote. This case has become, or perhaps always was, so much more than that. The court is not placed to answer moral questions, so the issue was never whether prisoners should be allowed to vote. It is the prisoner’s claim that the ban is inconsistent with our Bill of Rights, specifically section 12(a) which enshrines every adult New Zealander’s right to vote for members of the House of Representatives. However, then Attorney-General Chris Finlayson had agreed with this statement in his report on the ban, so whether or not there has been a breach is not necessarily at the crux of the case either. The real issue at stake is what are the actual significance and protection afforded to rights in New Zealand? If there has been a breach, what can actually be done about it?

The New Zealand Bill of Rights became law in 1990 and claims to “affirm, protect, and promote human rights and fundamental freedoms in New Zealand.” However, from the outset it was a limited bill. Section 4 makes it clear this act has no special power, meaning the court cannot hold another law invalid or decline to apply it when inconsistent with rights. The extent of the powers given to the court was to prefer a rights consistent interpretation whenever one “can” be given.

Source: https://www.stuff.co.nz/life-style/fashion/98518237/supreme-courture-judges-ditch-medieval-gowns-and-wigs-for-new-ceremonial-robes

2015 saw a potential shift in the rights landscape when the prisoner voting case came before the High Court. While it could be argued the prisoners were unsuccessful in their hearing, that really depends on how you measure success. The law was not overturned, but that was realistically an unlikely, if not impossible, outcome. What did happen was that the High Court made the unprecedented decision to issue a declaration of inconsistency with the Bill of Rights. A clear statement that Parliament had passed a law inconsistent with human rights. This decision was upheld by the Court of Appeal, and it is the Crown who has appealed to the Supreme Court. They submit that no court in New Zealand has the power to make such declarations. Solicitor General Una Jagose contends: “It is bad for our democratic system for the Court to take power it does not have to criticise the legislation.”

Yet all this discussion might be inconsequential, as the momentum of change sweeps this case aside. Minister of Justice Andrew Little has announced the Government’s intention to amend the Bill of Rights to provide protection along similar lines to what the High Court proposed. The change would give “statutory power for the senior courts to make declarations of inconsistency” and, more significantly, require Parliament to respond. However, this would not be a system like the United States or Canada where courts have broad powers to strike down legislation. After it has considered the law in question, Parliament would be entitled to change the law, repeal it, or simply do nothing. That does not mean there is no weight to a declaration. In a democratic society, our government is legitimate because the public voted for it. Allowing clear declarations allows for public scrutiny. It allows the public to assess if they are happy with a government who ignores judicial statements that laws breach our human rights.

The term ‘human rights’ is used almost casually in modern society, yet there is nothing straightforward about this topic. Rights are an abstract concept, which means there is no inherent agreement on how they should look. Per s 5 of the Bill of Rights, rights can be subject to reasonable and lawful limits demonstrably justified in a free and democratic society. Within this framework, a well-meaning and civil nation can easily disagree on the extent of freedom of speech, what the right to life includes, and whether or not prisoners should be allowed to vote. In a context of disagreement, every change to how we protect rights is noteworthy. It is not just the strength of protection that matters, but who carries it out. On one side of the argument, potentially a democratically elected parliament is in the best position to decide what rights should look like. However, no parliament is not perfect. Mistakes slip through and the majority may not be the best safeguard for the rights of minority groups. Regardless, human rights are established to protect us, ordinary citizens. We should encourage the development of robust systems of protection, but we should also remain attentive to the result of these develops and the extent they benefit New Zealanders whose rights may be in danger.

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