The Court of Appeal has upheld a High Court declaration that a prohibition on prisoners voting is inconsistent with the New Zealand Bill of Rights Act. In doing so, it confirmed and elaborated on the higher courts' jurisdiction to make declarations of inconsistency and ruled on the appropriateness of referring to parliamentary materials in proceedings.

Background

The Electoral Act 1993 was amended in 2010 to prohibit all prisoners from voting,(1) regardless of the length of their sentence. Before this, only prisoners sentenced to three years or more were disqualified from voting. Five prisoners successfully sought a declaration from the High Court that the disqualification was inconsistent with Section 12 of the Bill of Rights Act, which provides for the right of citizens over the age of 18 to vote in general elections.

The attorney general appealed, questioning whether the High Court had the right to make such a declaration. In addition, the speaker of the House of Representatives intervened, asking whether the High Court judge had breached parliamentary privilege by referring to a report made by the attorney general to Parliament.

Jurisdiction to make declaration of inconsistency

There is no express statutory provision for making formal declarations of inconsistency with the Bill of Rights Act by New Zealand courts, and the High Court's declaration was the first such instance. The act requires the courts to prefer rights-consistent interpretation of other legislation where available. (2) Further, Section 5 provides that the rights and freedoms protected by the act can be subject to such limitations "as can be demonstrably justified in a free and democratic society". However, this is subject to the proviso that the courts may not hold any other statute to be invalid or ineffective, or decline to apply any other statute, only because it is inconsistent with the Bill of Rights Act.(3)

To date, the higher courts had only gone so far as to make findings of inconsistency as part of their overall reasoning in interpreting legislation, stopping short of a formal declaration or remedy. The attorney general submitted that this was as far as the courts could go. Absent legislation expressly authorising formal declarations of inconsistency, he argued, such declarations did not form part of the judicial function in New Zealand.

The Court of Appeal disagreed. Noting that the courts were authorised by the act to examine other legislation for inconsistency with protected rights, and to seek rights-consistent interpretations where possible, it was not persuaded that the courts could not then take the "seemingly short step" from reasons to declaration. Further, the court noted that one of the purposes of the act was to affirm New Zealand's commitment to the International Covenant on Civil and Political Rights (ICCPR), which requires effective remedies for violations of human rights and the development of judicial remedies where possible. The principle that a rights breach should be met with an effective remedy had been interpreted by the Court of Appeal in the seminal Baigent's Case, as including the development of remedies where none already exist.(4)

The court also traced the origins of judicial power in New Zealand, and concluded that the common law judicial function extended to answering questions of law and, as a general proposition, did not require express legislative authority. Incompatibility between legislation and a protected right was a question of law, and the courts' jurisdiction to consider such incompatibility was confirmed in the act.

The Court of Appeal acknowledged that a declaration of inconsistency determined no legal rights and conveyed no legal consequence between the parties. The (inconsistent) legislation remained valid, as did anything done lawfully under it. No legal remedy was available to compensate the plaintiff or deter further conduct that, but for the legislative limitation on the right, would breach the relevant right.

Nevertheless, a declaration of inconsistency has some value to a plaintiff as a means of expressing a court's firm opinion that legislation should be revisited or as vindication of a protected right. The court acknowledged the principle of comity between the judicial and other branches of government. It characterised its role in such cases as being part of a formal dialogue with the political branches, which decide whether to modify inconsistent legislation. In many cases, a finding of inconsistency
which falls short of a formal declaration might trigger a reasonable expectation that the other branches of government might respond. However, in others, the additional force of a declaration might be appropriate. The court found that such a declaration upheld "the right in a constitutionally proper manner, by inviting Parliament to reappraise the statutory limitation upon it".

Parliamentary privilege

Section 7 of the act requires the attorney general to "bring to the attention of the House" any provision of a bill before Parliament that "appears to be inconsistent" with a right protected by the act. The attorney general advised Parliament that under Section 7 "the blanket disenfranchisement of prisoners" in the 2010 amendment appeared to be inconsistent with Section 12 and could not be justified under Section 5. The High Court judgment quoted from the attorney general's report at length before concluding that the prohibition on prisoners voting could not be demonstrably justified and was in breach of Section 5.

The speaker of the House of Representatives was granted leave to intervene in the Court of Appeal, to raise the issue of whether the High Court had inadvertently breached parliamentary privilege by making inappropriate use of parliamentary proceedings (namely, the Section 7 report). The speaker submitted that quoting the report itself was not objectionable, but that the High Court judge had gone further and effectively subjected the Section 7 report to judicial review, by using it to reinforce his own view of the substantive merits of the prohibition. The speaker submitted that this breached parliamentary privilege insofar as parliamentary privilege precluded the courts from questioning, or relying on, the truth, motive, intention or good faith of anything said in parliamentary proceedings.

The court traversed the accepted and long-standing uses of parliamentary proceedings in court proceedings, including to prove what was said in Parliament as a matter of historical record and to assist in the interpretation of legislation. The court held that these applied to proceedings concerning the consistency of legislation with the act, noting that the courts would be inhibited, and perhaps disabled, from examining legislation for inconsistency if they could not consider anything falling within the definition of parliamentary proceedings. However, the court also accepted that care must be taken in admitting such material, to ensure that it is relevant and probative and, when using it, the courts should ensure that they do not endorse or criticise Parliament's treatment of the issues. In particular:

• the court should undertake its own analysis, not review that of Parliament;
• Parliament speaks through the legislation itself; therefore, the legislature's thinking should not be lightly attributed to other parliamentary materials;
• to the extent that the court goes beyond the legislation itself, it must take care to ensure that the materials on which it relies are reliable indicators of legislative intent or policy; and
• the court must take care not to cross the line in its own reasoning between examining the justification advanced in litigation and questioning proceedings in Parliament.

The court posed the relevant issue in this case as being whether the judge had "inappropriately marked the Attorney's exam paper, as it were, by undertaking a critical analysis of its reasons". It concluded that he had not. The court found that it would have been better as a matter of comity if the High Court judge had not spoken of "reinforcing" the report, but rather summarised it and then recorded in his own words why the legislation was inconsistent with the protected right. However, it was also relevant that counsel for the attorney general had made the report the focus of attention in the High Court by telling the judge that the attorney general did not resile from it. In that case, it was understandable that the judge might use the report as a convenient way to list the relevant reasons why the legislation was inconsistent.

Further, the court cautioned that it would have been better if the judge had made no reference to the bill's passage through the house. The narrowness of the majority by which it had been passed, and the identities of the parties for and against, were not relevant. Mention of these facts, even in passing, risked being seen as questioning parliamentary proceedings. However, in this case, the judge had referred to these facts not to comment on Parliament's treatment of the issue, but in relation to an issue raised in separate proceedings (which directly raised the majority by which the bill was passed). The judge referred to the separate proceedings out of scrupulousness, to note that they were not affected by his decision.

Comment

The case is significant in its finding that the courts have jurisdiction to make declarations of inconsistency. Although the courts have, from the time of the act's enactment, been committed to granting remedies where possible to vindicate rights (in line with its commitment under Article 2(3) ICCPR), they have declined earlier applications for declarations of inconsistency.(5) It has been suggested that this is for two reasons:

• to avoid straining judicial-political relations; and
• concern that a formal order of the court "might be disdained with impunity".(6)

Nevertheless, in light of the Supreme Court's decision in the leading case Hansen v R, which found that the courts should not be diffident about declaring legislative inconsistencies when applying inconsistent legislation (as required by Section 4), it is, as the Court of Appeal stated in this case, a "short step" to a formal declaration of inconsistency, which in turn further underlines the importance of rights protected by the act in New Zealand's constitutional setting.

Endnotes

(1) Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010.
(2) Section 6 of the Bill of Rights Act.
(3) Section 4 of the Bill of Rights Act.
(4) Simpson v attorney general (Baigent's Case) (1994) 3 NZLR 667 (CA).
(5) For example in Hansen v R (2007) 3 NZLR (SC).
(6) Philip A Joseph, "Constitutional and Administrative Law in New Zealand" (4th ed, 2014, Wellington) at 1286.