Monday, July 27, 2015

A declaration of inconsistency

Back in 2010, Parliament passed the Electoral (Disqualification of Sentenced Prisoners) Amendment Act. The Act was passed despite a clear warning from the Attorney-General that it was inconsistent with the Bill of Rights Act, after a "debate" which was so shallow that it brought the entire parliamentary process into disrepute and undermined its legitimacy as our lawmaking body. In short, our government ignored its duty under the Bill of Rights Act and passed legislation which pissed on the right to vote, simply in order to grub for votes from vicious, vindictive sadists by kicking prisoners. It was a tawdry display which invited the courts to correct Parliament by formally declaring the law to be inconsistent with the BORA. And now the High Court has done exactly that:

An Auckland prisoner says he is rapt with a court ruling that a law banning all prisoners from voting breaches their human rights.

In the High Court, Justice Heath issued a formal declaration that the law, passed in 2010, is inconsistent with the Bill of Rights and is unjustified.

The ruling is a victory for career criminal Arthur Taylor, who has been fighting the ban in court for about a year.

The full judgement is here. Its very clear, and the short version is "if we couldn't issue a declaration of inconsistency for this, its hard to see what we could issue one for". Because it has hard to spot a more blatant and unjustifiable violation of the BORA than this.

In practical terms, it means very little, as section 4 of the BORA explicitly says that laws remain valid despite formal findings of inconsistency. Politically and morally, its explosive. The court has just told Parliament for the first time that they think that they did not do their job properly and that the law should not have been passed. And Parliament will have to respond. The sensible thing to do would be to accept the finding, repeal the law and restore it to what it was pre-2010. The question is whether National will accept that, or whether they'll throw a temper-tantrum and try and legislate to gag the courts from commenting on the legislation they pass. What they do will probably establish a constitutional norm, so I hope they choose carefully.

Meanwhile, this suggests that we now need a formal method of responding when the courts make such a declaration. The Human Rights Act requires the responsible Minister to report to parliament on the declaration and the government's proposed response. While a weak response, that would be a good start.