The recent decision in Taylor v Attorney-General is intriguing in several respects. This decision is the first occasion that a High Court Judge has gone so far as to issue a formal declaration that a law breaches the BORA. The legal and constitutional aspects have already been addressed by other commentators, this is essentially a civil liberties perspective.
Difficulties with the case
This case involves 5 sentenced prisoners and, as persons directly affected by the 2010 Amendment, it was appropriate that they initiated the legal proceedings. The applicants deserve considerable credit for their tenacity in spite of several challenges along the way, including considerable uncertainty about what result might be achieved even if their challenge was successful.
The existence and retention of citizen's rights deserves to be of paramount importance. In recent years there have been numerous instances where those rights have been eroded, and there has been remarkedly little objection on the part of ordinary New Zealanders. Who can overlook the reality that tens of thousands objected when a proposal to cut the number of snapper that a recreational fisherman could catch?
Relevance of rights
Rights are important for all new Zealanders, and it is an interesting comment on the collective psyche when it is left to prisoners to initiate a challenge.
Even the Attorney-General drew Parliament's attention to the conflict when the Bill was under consideration. However, that too was discounted.
Perhaps the most interesting aspect is where to from here for the Government? Even uttering the observation that Parliament has no obligation to rectify the situation tends to suggest a continuing arrogance and indifference. It is a sad commentary when Ministers resort to “pulling rank”. While Government has been ceded the right to do something, by itself that does not make the action right.
The NZ Council for Civil Liberties strongly supported a change in the law at the time of the 2010 Amendment. That change, however, was to urge the return of the right to vote to all prisoners, rather than the reduction proposed in that Amendment, and subsequently found by the High Count to be wanting
This is the same direction that the European Court of Human Rights has taken in recent years, and it is time for New Zealand politicians to look afresh at this issue and come to a different conclusion. To sleepwalk through the legislation once is disappointing; to be woken up and then go back to sleep again is reprehensible. We are all human beings and entitled to be treated with dignity and respect, even when some of us err.
This decision is a challenge to Parliament's integrity. It must address the declaration by the High Court promptly and return the right to vote to all prisoners. This will bring New Zealand's legislation into line with that which now prevails in Europe and honour the rights contained in the NZ Bill of Rights Act.