Dr Edward Willis, a lecturer at the University of Auckland’s Faculty of Law, discusses the recent decision in Attorney-General v Taylor where the Supreme Court determined that New Zealand courts can issue formal orders declaring that legislation is inconsistent with the rights and freedoms protected by the Bill of Rights Act1990. This judgment is one of the most significant in the court’s short history, Dr Willis writes.
This month, the Supreme Court issued one of its most important judgments in its short history. In Attorney-General v Taylor the Court determined, by a majority of 3 judges to 2, that the New Zealand courts have the power to issue formal orders declaring that legislation is inconsistent with the rights and freedoms protected by the New Zealand Bill of Rights Act 1990. In this post, I want to explore in a little more detail what the decision was about, what the Supreme Court actually said about some key issues, and what it all means.
Context for the decision
In 2010, the National-led government amended the Electoral Act so that no prisoner in New Zealand is able to vote in a national election. Previously, only prisons serving a sentence of 3 years imprisonment or more were prohibited from voting. The amendment to the Electoral Act changed the law by extending this prohibition so that it applies to all prisoners.
Even at the time the amendment was passed it was clear that this change in the law was in breach of the New Zealand Bill of Rights Act. Section 12(a) of the NZBORA provides that every person over 18 has the right to vote, and any restriction on that right needs to be justified as the sort of restriction we would accept in a free and democratic society. No-one – not even the Attorney-General of the National-led government that passed the law – believes that a prohibition that applies to all prisoners in a blanket fashion can be justified in this way.
So there is a clear breach of the NZBORA. That wasn’t in dispute in the Supreme Court. The issue was what, if anything, the courts can do about that breach. The issue is a tricky one because our constitutional system of government recognises that Parliament can, through legislation, make or change the law in any way it likes and the courts can’t stop it doing so. The key question in the case was whether the courts could take any type of formal action in response to Parliament’s breach of important rights and freedoms.
The decision itself
The answer, by a majority of 3-2, was that the courts could do something. They could issue a formal declaration that the change to the Electoral Act is inconsistent with the protected right to vote. This doesn’t change the law – only Parliament can do that – but it specifically points out why the law is a problem and why it ought to be changed.
This was not an unexpected decision. The Supreme Court essentially confirmed the view already reached in the High Court and the Court of Appeal, and many legal commentators have long predicted that sooner or later the courts would claim the power to issue formal declarations of inconsistency of this type. For that reason, the result in the case is perhaps less interesting than the reasoning the Court used to justify that result. That reasoning proceeded in two layers.
The first layer is the accepted power of the courts to fashion an appropriate remedy for a breach of fundamental rights in all the circumstances. NZBORA doesn’t outright state that the courts have this power, but it has long been accepted in New Zealand law that this type of remedial power is a necessary incident of rights protecting legislation unless the power is expressly excluded for some reason. What is novel about the Taylor case is the extension of this core idea to legislation that breaches protected rights. To justify this extension the majority rely on the fact that the NZBORA expressly states that it applies to the legislative branch of government, and that a formal declaration does not change the law and so does not interfere with Parliament’s power to legislate however it sees fit.
The second layer of reasoning responded to the argument that making declarations of this kind are just not something that courts do. Where courts have this declaratory power overseas, it is usually legislated for expressly. Further, the declaration power carries real consequences in those other contexts – Parliament is specifically required to take note of the declaration and respond to it, for example. That is not the case here, and so the remedy may not have much (if any) impact on our law. That’s potentially a problem, because the New Zealand courts tend to dislike making decisions where there are no legal consequences. To do so would be seen as unnecessarily interfering with or influencing decisions that properly belong to others. Courts should stick to their core role of determining the law, and if a declaratory remedy doesn’t have any real effect that is a good sign that it might be taking the courts beyond that core role.
Indeed, this was a key reason that the two dissenting Judges argued that the power to make a declaration did not exist. They even went as far as to express a concern that a formal declaration could be completely ignored, and so would erode respect for the courts. But the majority judges were careful to point out that they considered there to be important consequences from the declaration they were making. They argued that a declaration may support claims at the level of international law and domestically. It may assist Parliament if it is minded to reconsider the law in question, and change it so that the breach is in fact removed. And most importantly in my view, it vindicates the right that has been breached. Someone who has their rights negatively impacted by a poorly conceived law get a formal statement from the Court to the effect that “As an impartial adjudicator of rights, we have heard you and we agree. The law should not be used in this way”. This type of statement from our judiciary upholds the value and importance of the rights in question, and so these declaratory statements mean something if you take the role of the courts seriously in a democracy.
Why is it significant?
The significance of this judgment is already being felt. Even before the decision came out the Government had committed to amending the NZBORA to confirm that the courts have the power to issue these kinds of declarations and to require the government to take action in response. We don’t yet know what the detail of that response mechanism will look like, but even at a high level the change will require Parliamentary breaches of important rights to be taken more seriously. It is unlikely this change would have been seriously considered unless the Taylor litigation had been commenced.
More directly, the Supreme Court has placed the onus on the government to reconsider the changes to the Electoral Act that prohibit all prisoners from voting. The High Court, Court of Appeal and Supreme Court have all found that the legislation is contrary to rights that are foundational to our democracy. Even though some of the Supreme Court judges may shy away from making this point expressly, this decision puts pressure on the government to change the law.
In this respect, the initial response from the government has been rather disappointing. Justice Minister Andrew Little has stated that changing the law to make it consistent with the protected right to vote is “not much of a priority” for the government. That cavalier attitude towards a well-signalled and fundamentally important decision of our highest court is simply not good enough. Maintaining the Electoral Act in its current form erodes the credibility of our democracy for no apparent benefit, and I can only hope the government reconsiders its position on this issue quickly.
Either way, the ultimate legacy of the Taylor litigation is likely to be as a barometer of how seriously our government takes the fundamental rights that underpin our society and our government. Strength in our democracy comes from judicial and political parts of government working together. The Supreme Court has opened the door to the government to demonstrate that is sees the value in that type of collaboration. Time now for Parliament to act.
Dr Edward Willis was most recently a senior commercial lawyer and was recognised as a market-leading regulatory professional. He has deep experience operating at the intersection of business and government, having advised on numerous mission-critical and high-profile projects. Edward has expertise in a number of areas of economic policy including sector-specific regulation, competition policy and government intervention in markets. This expertise often sees him working directly with businesses affected by government processes, investors seeking to better understand the potential or the risk of a dynamic regulatory environment, government bodies seeking to understand emerging trends and best practice, or other professionals where their deliverables are especially complex due to government involvement or the need to seek regulatory clearances. Edward is passionate about great government and civic engagement, topics which he teaches at the University of Auckland School of Law. Edward’s strong reputation among his clients is based on advice that is thoroughly researched, precisely targeted and credibly received by both businesses and government. He is also keen for a coffee, so if you have an issue, an idea or a recent success regarding government, law or microeconomic policy why not get in touch – he’d love to hear about it.
Contact Edward at edwardmwillis@gmail.com or connect via Twitter or LinkedIn. Edward also blogs at Great Government and runs White Paper Public Policy.