No vote for New Zealand Prisoners
The subject was discussed recently in The Rights of Men (2)
Quinn’s Act passed in 2010 introduced a blanket ban removing the right of a prisoner to the vote. The law has been challenged by an Auckland Prison inmate, Arthur Taylor, as being inconsistent with our Treaty of Waitangi and our Bill of Rights.
A decision was released late yesterday NZ time by Justice Ellis as reported here by Radio New Zealand (RNZ).
The original block quote from RNZ is somewhat ambiguous and misleading – I have replaced it with this Yahoo report:
Inmates won’t be having their say in the upcoming election despite a judge showing sympathy for prisoners’ plight to win the vote.
On Wednesday prison litigant Arthur Taylor told the High Court at Auckland a 2010 law preventing all prisoners from voting was inconsistent with the Bill of Rights.
Previously only prisoners serving more than three years were banned from voting.
Taylor and the other inmate applicants asked for an interim order preserving prisoners’ right to vote at the upcoming election on September 20.
In her judgment on Friday, Justice Rebecca Ellis said she couldn’t grant Taylor the right to vote, but noted there was “considerable and considered support” for his position.
She set out criticisms of the bill at length – including criticism at the time from the Attorney-General that it was contrary to the Bill of Rights – to make it clear Taylor was not “some vexatious voice in the wilderness on this issue”.
The law meant a person serving a week-long sentence that coincided with the election would miss out, while a person serving a two-year sentence that didn’t coincide with the election wouldn’t receive any additional punishment, Justice Ellis said.
And mentally impaired prisoners detained in a hospital for less than three years would be able to vote, while all prisoners serving less than three-year sentences wouldn’t be able to.
But the law was clear and couldn’t have an alternate meaning that was consistent with the Bill of Rights, the Treaty of Waitangi or relevant international obligations, Justice Ellis said.
“However constitutionally objectionable [the law] might be, parliament has (for now) spoken.
“The court is unable to intervene.”
Taylor still has two judicial review applications on the subject which haven’t yet been decided.
A further report from RNZ
A professor of public law says it is no surprise the High Court has upheld a ban on prisoners voting, because the judge would have had to overturn parliamentary supremacy to remove it.
The law was changed in 2010 law to prevent anyone serving a prison sentence from voting.
Arthur Taylor and six other inmates challenged that in court, but yesterday Justice Ellis dismissed the case.
Andrew Geddis of Otago University said the ruling is predictable.
He said Justice Ellis spent 16 paragraphs criticising the law, but ultimately had little power to overturn parliamentary rule.
Mr Geddis said he doubts whether an appeal would be successful.
This to me is interesting:
It appears that the High Court has acknowledged sovereign rule and the right of parliament to dispose of human rights if it wishes, even though in this case parliament is informed by the Attorney-General, that this law is contrary to the Bill of Rights.
The court is not prepared to defend the integrity of the constitution.
If it is the Attorney-General’s place to determine compliance of legislation with the Bill of Rights then there should be a process in place where citizens can challenge that advice before parliament is allowed to rely on it.
That glimmer of hope that there would be a process that men could rely on to defend their rights, suddenly grew dimmer again.
But the greater issue is that New Zealand Citizens have no protection from a despotic Government operating outside internationally accepted decrees on the personal guarantees that a citizen should be able to expect.
This may be played out in terms of the vote for prisoners, but it becomes relevant to any other situation.
Will we get a decision on appeal within the week leading up to the election?
Doesn’t this situation arise because we don’t actually have a constitution in NZ?
In the absence of any higher authority, I’m personally more inclined to put my faith in parliament’s laws rather than an unaccountable judiciary.
In an ideal world, we would have a constitution which set clear limits on what both politicians and judges could decide.
The way I understand this, is that being a constitutional monarchy, we don’t have a single document, like the American Constitution, but many documents that form the equivalent of a constitution.
One of these documents is the Bill of Rights Act. (BORA)
Parliament passed this law, The Bill of Rights Act. The way Labour got around it was to use the Attorney General to write some bullshit that said the law complied. The way National got around it was to ignore it.
The concept that I see being tested here is not that the judiciary rules over the supremacy of parliament, but whether a law complies with the Bill of Rights Act.
In that respect the Bill of Rights is the higher authority, and both the High Court and in this case the Attorney General have said the law is wrong.
What’s the point of a worthless piece of paper that doesn’t hold anyone to account?
If we have a Bill of Rights we should be able to go to a court and ask for a declaration to preserve a right that is being taken away from us, and that is what Arthur Taylor has done.
The question becomes, is parliament (not a governing political party but parliament) a sovereign ruler that has the right to subject us to its will regardless of our Bill of Rights?
I haven’t seen the decision, but if a declaration is just a criticism and not an injunction on the contravention of a right, then the court needs to explain it’s inability to preserve that right.
If neither parliament or the judiciary can explain themselves them we definitely have a failed system.
Or is a Constitutional Monarchy just a mythical God that leans toward the persuasion of the ruling party?
There is another point that Arthur Taylor has raised.
If parliament is ignoring the advice of the Attorney-General, and making a change contrary to the Bill of Rights, then that is a change to the constitutional situation in our law and needs the vote to cross a 75% threshold.
If any Jill or Johnny at the bottom of a party list can bring in a private member’s bill and change the constitution, surely that is not a particularly robust system of government.
Surely our current situation cannot be so badly constructed that a court cannot declare this legislation invalid because parliament didn’t follow the rules.
I intend to Appeal this Decision.
I believe Judge Ellis made mistakes of law and fact , which led her to conclude the 2010 Amendment didn’t require a 75% majority vote to be valid .
On one point , she said she may have made a different conclusion if an applicant had raised the matter . In fact , I did raise the matter , but she overlooked it.
With due respect to professor Geddis , the Court would not need to have overruled Parliament to decide prisoners should vote .
The entrenchment argument makes it easy for a NZ Judge to decide. However , in time , I expect Judges will become more willing to decide that section 12 ( in this case ) of the NZ Bill of Rights Act should prevail . They will be come more willing to say “Wait a minute Parliament . You may be sovereign , but you can’t pass 2 laws which say opposite things . When you do this , it may be up to a Court to determine which law prevails. “
You can read Judge Ellis’ full Decision here .
Hi Arthur, welcome to the site.
Thanks for the link – as you can see I am very interested in what you are doing. I hope you will keep us updated, the media doesn’t always give us all the news and views.
In fact I found the Radio NZ coverage, so misleading I deleted it from the post.
I am not the site owner, only one of the authors on the site. Give some consideration to becoming an author, you views from the other side of the wall could be very interesting.
From your position as an advocate from within the prison environment I would be particularly interested in situations where men end up in goal as a result of Family Law decisions.
I coud be totally wrong here but isn’t ‘Law’ in NZ based on common law which is stipulated in the Magna Carta which is the base law that all other laws in NZ have to comply with?
The Magna Carta is on the list of NZ Laws.
and the 2nd stipulation is that law also complies with the Bill of Rights.
The main problem with any law is that parliament is so easily able to ammend them without any mandate from the tax slaves or human beings with rights to reside in the country.
The other problem is the fact that breaches of human rights and law by public servants are not punishable by jail as they seem to be if ‘commoners’ don’t obey statutes made by corrupt liars who reside in parliament and judges by their lawyer/judge mates who have high paid non-culpable taxpayer funded jobs.
We have a legal history that has bought us to where we are.
We have descended from Britain as a constitutional monarchy, partly separating ourselves in 1986 with the Constitution Act, from the effects (direct effects) of British Law (Not to say we can’t look at what they are doing as we can any other jurisdiction) then further separating ourselves by the creation of our own Supreme Court, severing links with the Privy Council, during the Clark government.
While we remain part of the Commonwealth and retain the monarch as the head of state, we are politically and legally independent in terms of our constitution.
That’s the way I see it.
So a court case like this challenges not only the legal present but also what legal philosophy we adhere to.
The Nuremberg trials are a good starting point. The German state did what they did by the book. They made laws that said they could do what they did and so the defence argued that they had broken no law.
The trial judges said no, we apply the rule of higher law, whether that comes from your religious beliefs or your moral principles you cannot use the law to treat other people this way, it is beyond our duty to each other.
Any parliament may make laws, but it is the thinking of Judges about that law that creates the balance in society.
The judgement was a political duck shove; judges are human and a week out from a general election would Justice Ellis want to own that legacy of ‘a decision she may have made’. (She said so herself)
Mentally Impaired to vote: