Asher Emanuel heads along to the Supreme Court to watch as Arthur Taylor takes the virtual stand to argue that prisoners should be entitled to cast ballots.
The chief justice invited Arthur Taylor to sit down while delivering his submissions. Ordinarily you are required to be on your feet when addressing a court. But when he stood to begin speaking, his torso and chin were all that was visible, the rest cut off by the edges of the screen on which he appeared.
The Supreme Court had decided ahead of hearing Arthur Taylor and Others v Attorney-General that Taylor wouldn’t be allowed to put his case in court itself. He, like many other imprisoned litigants, had to appear by AVL, audio-visual link.
Taylor was confined to a cubicle in Waikeria Prison fitted with a peach-coloured plastic chair and a video camera, his likeness and voice transmitted down the island to 85 Lambton Quay.
But when he sat down and leant over his notes, only the top half of his face was in view. “You may need to keep your head up,” the chief justice suggested to no avail. Everyone could hear him, though.
“The question should be phrased: does the Bill of Rights give me the right to vote? Does the Bill of Rights give me the right to vote? In my submission, your Honour, it does.”
From 1993 to 2010, prisoners serving less than a three year sentence were entitled to vote. The National government changed the law in 2010 to prohibit all prisoners from voting, regardless of the length of their sentence.
Taylor and several other serving prisoners challenged the legislation in court. In a landmark 2015 decision, the High Court for the first time issued what it called a “formal declaration of inconsistency”. The prohibition on prisoner voting, the court declared, formally, breached the right to vote guaranteed by New Zealand’s Bill of Rights, and there was no good justification for it.
The attorney-general, whose role is to decide the crown’s view of the law, disagreed with the court’s declaration. He appealed to the Court of Appeal, suffered comprehensive defeat, and then appealed once more. On Tuesday, nearly three years on from the first declaration, the Supreme Court finally sat to hear Taylor’s case.
It would have been, and may yet be, one of the more important constitutional cases to come before New Zealand’s highest court in quite a while. It concerns one of the most fundamental rights in a democracy — the right to decide one’s government. And more, it touches on larger questions about possible limits upon democratically enacted laws.
But a short while before the hearing the government announced it intends to make changes to the Bill of Rights that would largely answer the questions the court has to consider. Though the Supreme Court’s decision may be overtaken by circumstances, the government still has to develop a bill and get it through parliament. That may or may not happen. “Never say never,” the government’s lawyer warned the court. Or, in other words, pretend the government didn’t say anything.
The reasons for depriving all prisoners of the right to vote were not especially rigorous when the issue came before parliament in 2010. No one could say how many prisoners had voted in the previous election. Suggestions it would deter crime were entirely speculative. Nor was there anything to fear in the votes of prisoners — there’s a lot of people in prison per capita, but the number is electorally marginal.
What remained, then, was the symbolism of the “social contract” and the consequences for those who break it, and the then-government’s desire to appear tough, and particularly tough on crime.
Despite a report from the then attorney-general, Chris Finlayson QC, advising parliament that the bill appeared to breach prisoners’ human rights and could not be demonstrably justified in a free and democratic society, the prohibition became law.
The ideological gulfs in New Zealand politics, which we can often pretend aren’t real, bubbled to the surface in the parliamentary debate.
Responding to criticisms the bill infringed prisoners’ human rights, Paul Quinn, the one term National MP whose member’s bill it was, explained to Parliament: “There are many other examples where we restrict people’s rights. In fact, we require people to license dogs.”
Simon Bridges, who recently struggled to remember whether prisoners could or couldn’t vote, spoke in favour of the law at the time. “My grandfather fought in a world war, but did he do that so that serving prisoners could vote?” he asked the house. The bill would, he assured, “make a great deal of difference morally in this country”.
The law would make a moral difference. With a prison population substantially comprised of Māori, the law disenfranchised Māori at a greater rate than it did others, as the Human Rights Commission and Hone Harawira pointed out at the time.
“The history of the right to vote in this country is one of confronting prejudice and challenging exclusion”, Harawira said to parliament, speaking against the bill.
“Our history has been one of opening up the right to vote to women, to Māori, to people who were not British subjects, such as the Chinese, to people living on the Chatham Islands, to 20-year-olds, and ultimately to 18-year-olds, as well. This bill… aims to take us back to a time when exclusion defined us as a society, and to reset us on the track of slowly but surely rebuilding the walls of denial and racism.”
The breach of prisoners’ right to vote and the law’s disproportionate impact upon Māori became the basis of legal challenges brought by serving prisoners Arthur Taylor, Hinemanu Ngaronoa, Sandra Wilde, Kirsty Olivia Fensom and Claire Thrupp.
After twists and turns, the High Court decided the prohibition wasn’t unlawfully discriminatory, but did agree that it breached the right to vote. Of course, not all rights are absolute, as the Bill of Rights recognises. Limits on rights are lawful provided that they are “demonstrably justifiable in a free and democratic society”. But the High Court held that the breach wasn’t justifiable, in part because its blanket impact on all prisoners bore no relation to the severity of any one person’s offending.
The attorney-general hadn’t really tried to argue otherwise and the High Court was told he did not resile from the advice he gave to parliament in 2010. Instead, the attorney-general argued that, regardless of whether the law breached prisoners’ rights, the courts just didn’t have the power to issue a formal declaration saying so.
Or, as Una Jagose QC, the solicitor-general, put it to the Supreme Court: “We don’t admit a non-adjudicative remedial function of the court sounding in an order.” Constitutionally there’s quite a bit going on here but the nub of it is: What is the role of parliament, and what is the role of the courts?
The Bill of Rights says that it applies to things done by all branches of government: the executive (the actually-doing-things parts, like ministries and departments), the judiciary, and also parliament.
One of the main thing that parliament does is make laws. And laws can’t be struck down for breaching the bill of rights, unlike in for example the United States.
So how can the Bill of Rights apply to Parliament’s laws if a law can’t be struck down, even when it clearly breaches a right? (NB so no one @s me: If you follow these matters closely, you might say “rights-consistent interpretations”, which is one of the answers, but wasn’t at issue before the Supreme Court: there were no alternative interpretations pleaded or, I think, available.)
The range of answers put to the Supreme Court on Tuesday ran from essentially “nothing” (the Attorney-General’s view) through to ‘a declaration of inconsistency’ (the view of Taylor and the Human Rights Commission, who intervened in support of the prisoners’ case).
What’s the effect of the declaration of inconsistency? The courts have so far said it has no formal effect. The rights-breaching law would still be in force because it can’t be struck down. There would, though, be a “reasonable constitutional expectation” that Parliament would at least have a good long think about what it’s done. It doesn’t sound all that effective but, as Taylor put it, it’s his only remedy.
Jagose had to tell the judges they couldn’t do something that they might well want to do. She tried to show that the Bill of Rights didn’t apply to Parliament and that it was none of the courts’ business anyway. Heavy duty semantics were necessary to dress up what was essentially a constitutional scuffle between the branches of government.
It was possible for the executive and judiciary to “breach” the Bill of Rights, but Parliament could only “act inconsistently” with it, Jagose argued.
“That’s a very subtle argument,” said the Chief Justice.
Laws that are inconsistent with the Bill of Rights don’t breach rights but change the rights, Jagose offered.
“You can just play with these words, but what we’re grasping for is the substance,” said the Chief Justice. “If you act ‘inconsistently’ with an obligation,” she asked Jagose, “why is that not a ‘breach’ of the obligation?”
Colloquially, maybe, but these are special terms, came the reply.
It went on like that for a good few hours. Eventually the Chief Justice removed her glasses, leaned forward and asked whether they were really going to start talking about the Bill of Rights 1688? She worried they were all about to “make up the constitution on the hoof”.
“We do make up the constitution,” Jagose replied.
Our unwritten constitution is constantly in a state of being made up. Even then, there’s only so far the courts can take matters. Even if Taylor wins, it will be up to Parliament to right the wrong and that relies entirely on whether those we elect think everyone should be able to vote. In 2010 a majority did not.
Perhaps Parliament will take it up. Only lightly remarked upon was the government’s recent announcement that it wanted to change the law to allow exactly this kind of declaration against which the Attorney-General was arguing against in court. The Attorney-General’s objection wasn’t to the power to make declarations of inconsistency, said Jagose, but “to the Court taking the power.”
That’s the real anxiety here — the courts ‘taking’ a power for themselves. For the first time, the courts have clearly said they can examine the substance of a law and impose a formal consequence on occasions where they find it lacking. Even if the expectation is simply that Parliament will have a think about what the courts have said, it’s a new judicial power concerning the decisions of an elected Parliament.
It would be okay, Jagose said, for the courts to say that a law was inconsistent with the Bill of Rights, but only in the reasons for their judgment and not as a formal order. It’s this difference without a distinction which has brought the country to what the Solicitor-General called a “constitutional cross-roads.”
Watching over all this from two screens high on the sides of the courtroom was Arthur Taylor. Reduced to the litigation equivalent of a job interview via Skype, his every cough and sigh was broadcast overloud through the courtroom.
But he was at the same time elevated, the screens fixed above the five most senior judges; an aberration in courtroom architecture, which invariably seats the judges higher than counsel, the public, and prisoners.
Mr Francois, lawyer for Taylor’s co-respondents Ngaronoa, Wilde, Fensom and Thrupp, told me Taylor was upset he’d been denied the right to appear in person. He’d been allowed to come to court in many of his other legal challenges.
Taylor suspects the Department of Corrections is trying to stymie his legal work with a recent transfer from Paremoremo to Waikeria (a prison which “horrified” Andrew Little on a recent visit) which he says was unlawful and resulted in difficulty accessing his court materials.
But he managed well, despite the conspiracy he fears. Taylor’s submissions were eloquent in their brevity. There was little he could add, your Honours, to the the reasoning of Justice Heath, the five Court of Appeal judges, and the Human Rights Commission’s submissions, all of which he wholeheartedly agreed with. Just a few minutes and then he was done. “Unless I can assist your Honour any further…”
“Thank you, Mr Taylor,” the Chief Justice said.
On the second day the Solicitor-General tried to argue that Taylor didn’t have standing to bring the case in the first place because he’s been in prison so long the law change didn’t affect him. Taylor is superfluous, the Court was told. Taylor did not agree.
“I carried the whole burden of argument at the High Court!” he said. Regardless of whether he was affected by the law, he’s a committed prisoner rights advocate and, after all, actually has to live in prison.
“I’m a prisoner – a distinct minority. We are a particularly vulnerable group. Interests of prisoners as a whole affect me. The more prisoners who vote, the more prisoner-friendly policies. I have an interest in that.”
“The court,” he reminded the judges, “is designed to do justice.”
But even if he wins once more, is anyone listening? He can have a his orders from the highest court in the land and still won’t be able to vote. The first declaration was made in 2015 and it doesn’t seem Parliament has thought about changing the law.
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Andrew Little has said he thinks the voting ban isn’t right (and so has David Seymour). But the National Party is already workshopping its “tough on crime” skit, and with Little’s new commitment to reforming the criminal justice system he may not have an appetite for a fight over prisoners’ voting rights.
Was it all worthwhile? “It appears to have done the trick, if I may say so”, Taylor told the Supreme Court. And it had, in a way — there he was, in the Supreme Court, still arguing his case, and here you are, still reading about those without a vote.
By 3pm on Wednesday it was all over. The chief justice announced their honours would retire and take time to consider; the lawyers on both sides abandoned their formality and shook hands; and on the screens Taylor’s face was replaced by the logo of the Ministry of Justice.
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