Letter: Where's the govt action on prisoners' right to vote?

We are concerned by the lack of action from the Government in response to Arthur Taylor's successful challenge to the law taking away prisoner's right to vote. The decision of the High Court to declare the law to be inconsistent with the NZ Bill of Rights Act is unprecedented and surely calls for a legislative response.

Accordingly we have written to Amy Adams, the Minister of Justice, and Chris Finlayson, the Attorney-General, to ask them how and when they intend to remedy the situation.


14th September 2015

Dear Minister Adams

Prisoners and the Right to Vote – section 12(a) of the New Zealand Bill of Rights Act 1990

At its meeting on 12 August 2015, the New Zealand Council for Civil Liberties (NZCCL) noted the decision of Mr Justice Heath in the High Court in Arthur William Taylor and Others v Attorney-General of New Zealand and the Chief Executive of the Department of Corrections [2015] NZHC 1706.  The Council considers that the Judgment calls for a response by the New Zealand Government and Parliament.

You will be aware that the case was taken by a number of prisoners serving sentences in New Zealand prisons at the time of the 2014 General Election.    The plaintiffs were disqualified from voting in the election by section 80(1)(d) of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, amending the Electoral Act 1993.    Heath J made a declaration that section 80(1)(d) is inconsistent with section 12(a) of the New Zealand Bill of Rights Act 1990.  This was because, as the Judge found, the provisions produced arbitrary outcomes and could not be demonstrably justified in a free and democratic society.

Heath J said that the primary purpose of a declaration of inconsistency is to inform the public of New Zealand that a provision of the statute law is inconsistent with the Bill of Rights Act.   That was as far as the High Court could go, however, the NZ Government is in a position to take action to remedy the defect in the legislation.   

The decision that the disenfranchising provision was not consistent with the Bill of Rights Act will not have come as a surprise because the Attorney-General advised Parliament at the time the amending legislation was introduced to the House, that it appeared to him to be inconsistent with section 12(a) of the Bill of Rights Act. 

The NZCCL members asked me to write to you and the Minister of Corrections requesting that you take the High Court’s declaration of inconsistency seriously, and introduce a new bill to amend the offending provision, removing the features that contribute to the inconsistency with the Bill of Rights Act.   This would be a positive step, and show that the NZ Government takes the NZ Bill of Rights Act and civil liberties in New Zealand seriously.

It would then be up to Parliament to consider a new bill.  Parliament would again have the benefit of an opinion from the Attorney-General as to whether that bill is inconsistent with the Bill of Rights Act.  

Please let us know, as soon as possible, the steps the Government proposes to take in response to the High Court declaration of inconsistency.

Yours sincerely

Marion Sanson

Executive Council member, NZCCL

Cc Attorney-General, Chris Finlayson

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