A constitutional call to action

The Court of Appeal’s recent judgment in Attorney-General v Taylor and Others NZCA 215 [2017] offers potential for a decisive constitutional improvement.

Dr Stephen Winter

That judgment held, against an appeal by the Crown, that the courts have the power to declare a law to be inconsistent with the New Zealand Bill of Rights Act 1990 (NZBORA). The Court’s endorsement of the declaratory power is a major constitutional development, but it will require action by government to realise its full potential.

A declaration of inconsistency is a legal remedy. Importantly, it does not affect the validity of the statute in question. Instead, it informs both parliament and the public of a legal defect by indicating that a law is not consistent with the values of a free and democratic society.

The particular case arises from a 2010 amendment made to the Electoral Act 1993 that disenfranchised almost everyone who is incarcerated on the day a general election is held. That ban is inconsistent with section 12 of NZBORA, which affirms that every New Zealand citizen of 18 years or older has a “right to vote in genuine periodic elections of members of the House of Representatives”. NZBORA is part of New Zealand’s constitution. It is the paramount expression of the rights that are necessary to a free and democratic society. Therefore, a law that prohibits citizens from voting rightly attracts significant concern. Indeed, the Attorney-General’s report on the 2010 Bill described the ban as both unjustifiable and irrational.

At present, NZBORA is a relative weak check on the ability of Parliament to pass rights-inconsistent legislation. Parliament regularly enacts legislation that breaches NZBORA, a fact recognised in the long list of Attorney-General “Section 7” reports identifying the many and various breaches that presently stain the statute books. In response to the 2010 ban, the lead plaintiff, Arthur Taylor, sought (in part) a declaration from the courts that the Electoral Act was inconsistent with NZBORA. In a landmark decision, the High Court provided that declaration in Taylor v Attorney General [2015] NZHC 1706. That was New Zealand’s first declaration of NZBORA inconsistency.

Formal declarations of NZBORA inconsistency are potentially an effective means to strengthen NZBORA. However, although the courts have an explicit declaratory power within the Human Rights Act 1993, NZBORA does not grant that power. As such, the courts’ independent declaratory initiative in Taylor raises a range of interesting constitutional questions.

The Court of Appeal should be congratulated on its engagement with a range of constitutional matters in the Taylor judgment. I will focus here on one interesting argument made by the Crown – that the power to make declarations of NZBORA inconsistency encroaches on the constitutional principle of comity. The principle of comity holds that one branch of government should not tread upon the domain of another. Therefore, Parliament should not encroach upon matters that are properly those of the courts and, similarly, the courts should not venture into matters that lie within the purview of Parliament.

In New Zealand, the legislative power lies with Parliament and, therefore, the other branches of government should not derogate from Parliament’s legislative jurisdiction. In Taylor, the Crown took the position that the declaratory power would “trespass upon the functions of the political branches, for it would be tantamount to an address to Parliament or the nation about the quality of laws when measured against fundamental rights”. It is not the business of the courts to tell Parliament whether the law is consistent with fundamental rights – Parliament gave that job to the Attorney- General –moreover, it is Parliament’s job, as the elected branch of government, to decide how to balance the diverse values affected by rights-law.

Reasonable people can disagree over whether prisoners should be permitted to vote. Indeed, it has long been the case that New Zealand excludes many prisoners from the franchise. The 2010 “blanket ban” in effect simply made the treatment of all prisoners consistent. Whereas possession of the right to vote had previously depended upon the length of sentence, or severity of the crime, now the same rule applies to everyone imprisoned – they are all disenfranchised. This is not to say that I think the 2010 blanket ban was right. I do not think it is. But it is the case that Parliament has a long-standing practice of legislation in this domain, as part of New Zealand’s constitutional practice of parliamentary supremacy.

Confronting that argument, the Court of Appeal’s judgment in Taylor rejects the Crown’s claim that the declaration of inconsistency breaches comity. Instead, the Court stresses the role of the declaration as part of a formal “dialogue” between the branches of government. Recall that the declaration does not invalidate the law. Nor does it require Parliament to enact a remedy. A declaration is, instead, a formal statement notifying Parliament and the public of a legal defect. Through the declaration, the Court reminds Parliament of its duty to respect the fundamental rights of the citizen. And the Court hopes Parliament will listen. The Taylor judgment expresses the expectation that Parliament “will respond by reappraising the legislation and making any changes that are thought appropriate”.

My concern is that this hope will go unmet. New Zealand lacks the constitutional mechanisms needed to structure inter-branch dialogue. It is a general principle of politics that “soft powers”, like the declaration, require strong institutional structures to be effective. For example, New Zealand’s obligations regarding international conventions on, for example, torture are stiffened by the right of international bodies to assess New Zealand practice and their ability to demand a report on the relevant matters from New Zealand. The occasion of delivering those reports provides New Zealand with an opportunity to assess practice and to effect salutary changes.

Similarly, I think that, if the declaration of NZBORA inconsistency is to become an effective component of our constitution, Parliament should structure its engagement through a formal reporting process. Modelled on existing practice within the Human Rights Act 1993, the Minister responsible for inconsistent statute would be obliged to provide Parliament with a report bringing the declaration to the attention of the House and advising on the government’s response. For optimal effect, it would be best to amend NZBORA to affirm the Court’s declaratory power and to set out the new Ministerial obligation to report.

Right now, New Zealand is in a perilous position. Perhaps the Crown will appeal the decision to the Supreme Court. If so, it will probably lose the case and suffer the full weight of the Supreme Court’s authoritative criticism and the associated publicity. Therefore, it is possible that the government will simply ignore the Court of Appeal’s judgment and expect the problem to go away. There is a real constitutional danger that the Court’s efforts to engage in constitutional dialogue will be met by obstinance, or even silence.

Whatever one thinks about the right of prisoners to vote, the Court’s newly won power to make declarations of inconsistency is an important constitutional development. And if the government ignores the Court’s judgment, the declaratory power may sink into irrelevance alongside the Attorney-General’s Section 7 reports. That possibility would renounce the last best hope for an improved NZBORA and with it a better constitutional form of government. Realising the value of the declaration requires government to act. That fact is a clear indication of Parliament’s continuing constitutional supremacy. But we do need action. 

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